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C H A P T E R 1 0 The Tense Office: Discrimination, Victimization, and Affirmative Action CHAPTER OVERVIEW Chapter 10 examines issues and ethics surrounding discrimination in the workplace.

1. RACIAL DISCRIMINATION

L E A R N I N G O B J E C T I V E S

1. Define racial discrimination. 2. Distinguish different ways that racial discrimination occurs in the workplace. 3. Consider legal aspects of racial discrimination in a business environment. 4. Discuss ethical aspects of racial discrimination in a business environment.

1.1 The White Running Back Toby Gerhart is a bruising running back. Coming out of college at six feet and 225 pounds, he was drafted by the Minnesota Vikings football team with their first-round pick in 2010. It was a controver- sial choice. His playing style is unorthodox: he runs standing almost straight up and doesn’t do much faking and cutting. Most NFL runners get low and slip away from tacklers. Gerhart chugs and blows through things.

That’s not Gerhart’s only distinction. In a league where running backs—almost all of them—are black, he’s white. On the days leading to the draft, Gerhart feared his skin color might be expensive. An anonymous quote had been circulating, suggesting that his position in the draft order could fall, bring- ing his paycheck down along with it: “One longtime NFL scout insisted that Gerhart’s skin color will likely prevent him from being drafted in Thursday’s first round. ‘He’ll be a great second-round pickup for somebody, but I guarantee you if he was the exact same guy—but he was black—he’d go in the first round for sure,’ the scout said.”[1]

As it turned out, the scout was wrong. But the question of race in sports had flared, and the media came to it. One story appeared on an MSNBC-affiliated website called theGrio.com. Writer John Mitchell pointed out that twenty-seven of the NFL’s thirty-two general managers (those ultimately re- sponsible for draft-day selections) were white, and so, he asserted, it was “virtually impossible” that ra- cism could work against Gerhart.[2]

John Mitchell is black. In fact, if you go to theGrio.com’s contributor page, you’ll find that, as a rough estimate, 90 percent of the website’s writers are black, a number that’s far, far out of proportion with the global percentage of black writers out there. The disproportion, however, would be less sur- prising for anyone who’d read the description the site presents of itself: “TheGrio.com is devoted to providing African Americans with stories and perspectives that appeal to them but are underrepresen- ted in existing national news outlets. TheGrio features aggregated and original video packages, news

racial discrimination

In a business environment, treating individuals differently from others for reasons of race and at the expense of professional merit.

articles, and blogs on topics from breaking news, politics, health, business, and entertainment, which concern its niche audience.”[3]

On that same page, surfers are directed to a video story about theGrio.com produced by NBC New York, which is a station aimed at the general market, not theGrio.com’s niche audience. The story tells of theGrio.com’s origin, and in an interview with the website’s founder, he remarks that his contribut- ors are very diverse: “We have conservatives, liberals, old folks, young folks, rich folks, poor folks, politicians and plain folks.”[4]

The NBC story also informs us that the idea for creating a site that aggregated news stories in- volving the black community was taken to NBC executives who agreed to sponsor the website. We don’t learn which specific NBC execs received the proposal, but a quick check of the network’s direct- ors and programming directors and so on leads to the strong suspicion that most were white.

Questions about racial discrimination are tangled and difficult. Here are a few of the knotted un- certainties arising from the Gerhart episode and its treatment in the press:

< The story about Toby Gerhart in theGrio.com claimed that the white Gerhart couldn’t suffer racial discrimination because the people who’d be drafting him (or not) were white. Is that true, is it impossible for whites to be racists against other whites?

< Overwhelmingly, running backs in the NFL are black. These are painful but very high-paying jobs with long vacations and lots of fringe benefits. Most young guys would be happy with the work, but a certain racial group holds a near monopoly. Is there racism operating here?

< TheGrio.com’s workforce is, according to its founder, very diverse in many ways but completely dominated by a single racial group. Racism?

< MSNBC, which sponsors theGrio.com, currently has a prime-time TV lineup (Joe Scarborough and Mika Brzezinski in the morning and Chris Matthews, Ed Schultz, Rachel Maddow, and Lawrence O’Donnell at night) that’s all white. Racism?

1.2 What Exactly Is Racial Discrimination? Racial discrimination in the economic world can be defined in three steps:

1. An employment decision—hiring, promoting, demoting, firing, and related actions—affects an employee or applicant adversely or positively.

2. The decision is based on the person’s membership in a certain racial group rather than individual ability and accomplishment with respect to work-related tasks.

3. The decision rests on unverified or unreasonable stereotypes or generalizations about members of that racial group.

The first step—someone has to suffer or benefit from the discrimination—is important because without that, without something tangible to point at, you’re left making an accusation without evidence.

The second step—discrimination is based on race as opposed to job qualifications—is critical be- cause it separates the kind of racism we typically consider vile from the one we normally accept as reas- onable. For example, if actors are being hired to play Toby Gerhart in a biography about his life, and all the finalists for the role are white guys, well, the casting company probably did discriminate in terms of race, but this particular discrimination overlaps with qualifications helping the actor play the part. This contrasts with the alleged racial discrimination surrounding the Gerhart draft pick: the suspicion that he couldn’t be very good at running over other people with an oblong leather ball cradled in his arm because his skin is white. If that’s a baseless premise, then it follows that within this definition of ra- cism, theGrio.com’s claim that Gerhart has no reason to fear unfair discrimination because so many NFL general managers are white is, in fact, wrong. Whites can exhibit racial discrimination against oth- er whites just as blacks can discriminate against blacks and so on.

The difference between discriminating in favor of white males to play Gerhart in a movie and dis- criminating against white males as running backs is more or less clear. Between the extremes, however, there are a lot of gray areas. What about the case of hiring at theGrio.com? Just looking at the list of contributors, it’s hard to avoid wondering whether they’re picking people based on skin color as op- posed to writing ability. On the other hand, since theGrio.com explicitly states that its mission is to tell stories affecting the black community, a case could be made that black writers are more likely to be well qualified since it’s more likely that their lives significantly connect with that community. It’s not, in other words, that contributors are hired because they’re black; it’s the fact that they’re black that helps them possess the kind of background information that will help them write for theGrio.com.

The definition’s third step—an employment decision rests on unverified or unreasonable stereo- types or generalizations about members of a racial group—is also important. Staying on theGrio.com example, there’s a difference between finding that in specific cases contributors well suited to the site also tend to be black, and making the stronger generalization that whites, Asians, Hispanics, and so on

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experimental indication of racism

Evidence of racism in society gleaned from planned experiments.

statistical evidence of racism

Evidence of racism in society gleaned from statistics.

episodic evidence of racism

Evidence of racism in society gleaned from specific, unplanned occurrences.

are by nature incapable of understanding and connecting with the realities covered by the web page. This second and generalizing claim eliminates the opportunity for those others to participate.

Finally, questions about racial discrimination center on purely racial divisions but overlap with an- other distinction that can be similar but remains technically different: ethnicity.

Race concerns descent and heredity. It’s usually visible in ways including skin, hair, and eye color. Because it’s a biological trait, people can’t change their race. Ethnicity is the cluster of racial, linguistic, and cultural traits that define a person as a member of a larger community. The Hispanic ethnic group, for example, contains multiple races, but is unified by common bonds tracing back to Spanish and Por- tuguese languages and customs. Though it’s not common, one’s ethnicity may change. A girl born in Dublin to Irish parents but adopted by an Argentine family living in East Los Angeles may ultimately consider herself Hispanic.

The US Census Bureau divides individuals in terms of race and, with a separate question, ethnicity. It’s not unusual, however, for the two categories to be mixed in a business environment. Many organiz- ations place Hispanic on the list of racial options when measuring their workforce’s diversity. In the real world, the line between race and ethnicity is blurry.

1.3 Locating Racism in Business Questions about racism swirl around the Toby Gerhart episode, but it’s equally clear that getting a firm grip on which people and institutions involved actually are racist is difficult. Nearly all running backs in the NFL are black, and at least one scout presumes that racial discrimination in favor of that color is an active part of the reason. But there could also be social and cultural reasons for the imbalance. Maybe young black men are more likely to devote themselves to football because they see so many suc- cessful role models. Or it may be that players—regardless of their race—come from a certain economic class or geographic part of the country where, in fact, blacks happen to be the majority. More explana- tions could be added. No one knows for sure which is right.

On the other side, just as it’s prudent to be careful when using words like racist and pointing fingers, there is real evidence indicating wide and deep currents of racism in US business life. Gener- ally, there are three evidence types:

1. Experimental 2. Statistical 3. Episodic

One experimental indication of racism in hiring comes from economist Marc Bendick. He paired applicants for gender and appearance, loaded them with similar qualifications, and sent them to New York City restaurants in search of waiter jobs. The only notable difference between the two applicants was their race; whites, blacks, Asians, and Hispanics participated. After 181 restaurant visits in which the two applicants appeared within an hour of each other, the results were tabulated. Because four ra- cial groups were investigated there are a lot of cross-tabs, but the basic finding was simple: with everything else as equal as possible, whites were significantly more likely to be given information about job duties, receive second interviews, and be hired. According to Bendick, “The important thing is that we repeated the experiment dozens of times so that we can be pretty sure when a pattern emerges it really is differences in employer behavior and not a random effect.”[5]

In terms of statistical evidence of racism, racial disparities are significant in many areas. In- come is not atypical. According to the US Census Bureau, in 2006 the median personal income for Asi- ans was $36,000; for whites $33,000; for blacks $27,000; and for Hispanics $24,000.[6] The disparities contract significantly—but not all the way—when you adjust for education levels. Surveying only those who hold bachelor’s degrees yields these numbers: white, $44,000; Asian $42,000; black $42,000; His- panic $37,000. Going back a little more than a decade, the federal Glass Ceiling Commission produced a set of striking statistics. According to its study, 97 percent of the senior managers of Fortune 500 companies are white (and 95 percent are male). That compares with a broader economic reality in which 57 percent of the working population is female, or minority, or both.[7]

Episodic evidence of racism in business life is real-world episodes where decisions seem to have been made based on racial distinctions. The venerable clothier Abercrombie & Fitch, which once out- fitted JFK and now sells heavily to collegians, garnered considerable (and unwanted) media attention when Jennifer Lu, a former salesperson at the store, took her story to the CBS news program 60 Minutes. According to Lu, she was fired soon after corporate executives patrolled the store where she worked and informed the store’s manager that the staff was supposed to look like the models in the store’s display posters. If you’ve been in Abercrombie, you may remember that they tend to have the blonde, blue-eyed, football team captain look. Like Toby Gerhart. In an interview with 60 Minutes, Anthony Ocampo says, “The greeters and the people that worked in the in-season clothing, most of

CHAPTER 10 THE TENSE OFFICE: DISCRIMINATION, VICTIMIZATION, AND AFFIRMATIVE ACTION 239

discrimination

In a business environment, treating individuals in terms of stereotypes or unverified generalizations and at the expense of professional merit.

institutional discrimination

Discrimination embedded in an organization’s culture.

individual discrimination

Discrimination expressed by an individual within an organization that may not share the outlook.

isolated discrimination

An episode of discrimination not indicative of an individual’s or organization’s standard practice.

regularized discrimination

Recurrent episodes of discrimination indicative of an individual’s or organization’s standard practice.

unintentional discrimination

Discriminatory acts stemming from unrealized prejudice.

intentional discrimination

Discriminatory acts stemming from explicitly realized prejudice.

Civil Rights Act of 1964

Federal law banning discrimination in terms of race, color, religion, sex, or national origin.

them, if not all of them, were white. The people that worked in the stock room, where nobody sees them, were mostly Asian-American, Filipino, Mexican, Latino.”[8]

A lawsuit against the store was settled out of court when Abercrombie agreed to pay almost $50 million to negatively affected employees and beef up their minority hiring. They also stated that their custom of seeking out new sales staff at predominantly white fraternities and sororities should be modified.

1.4 Categories of Racial Discrimination When discrimination exists in a business environment, it can be distinguished into several categories. First, there’s a division between institutional and individual discrimination. Institutional discrim- ination is exemplified in the Abercrombie lawsuit. The preference given to white, football-player types wasn’t one person at one store; it was part of the corporate culture. Managers were instructed to in- clude a certain look while excluding others, and presumably their job depended on their ability to meet that demand. The manager, in other words, who fired Jennifer Lu may (or may not) have thought it was a terrible thing to do. Regardless, the manager’s personal feelings had nothing to do with the firing. Instructions were provided by higher-ups, and they were followed.

Individual racial discrimination, on the other hand, can occur in any organization no matter how determined leaders may be to create an organizational culture prohibiting it. The NFL, for example, es- tablished a requirement (commonly called “the Rooney Rule”) in 2003 requiring teams to interview minority candidates for football operations posts. It’s part of a broader effort by the league to ensure against racial discrimination. Still, this comes from a 2005 article by Sports Illustrated writer Dan Banks: “One Asian stereotype concerns size. A NFL personnel man told me on Thursday the problem with Chang is ‘the kid is short.’ But when I noted that Chang was 6-1½ and 211 pounds, and taller than San Diego’s Drew Brees—the talent scout replied: ‘But he plays short. And he’s 211, but he looks frail.’”[9]

A second broad distinction within the category of racial discrimination divides isolated from reg- ularized incidents. An isolated case of racial discrimination is a one-time deal. Regularized incidents are repeated occurrences fitting into a pattern.

The final distinction cuts through all those mentioned so far; it divides unintentional from in- tentional discrimination. Take as a general example a seventy-year-old who grew up in a time and place where racism was normal and accepted almost without objection. For someone coming from those circumstances, it’s hard to imagine that from time to time some of that old way of seeing the world isn’t going to slip through. Of course the fact that racism is unintentional doesn’t make it less ra- cist, but just like in everything else, there’s a difference between doing something without thinking about it and doing something with premeditation and full understanding.

1.5 The Legal Side of Discrimination A complex web of legal precedents and civil rules apply to racial discrimination. At the center, the Civil Rights Act of 1964 covers all employers in both private and public organizations that have fifteen or more workers. The act’s crucial language can be found in Title VII, which confronts a host of discriminatory practices:

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fairness argument against discrimination

The argument that discrimination is wrong because it treats people unequally for reasons not involving merit.

veil of ignorance test

Imagining how you’d like society to be if you don’t know beforehand where you’ll be placed in it and using that image to test current reality.

It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate or classify his employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.[10]

You notice that employee is referred to as “his,” not “his or hers,” and employers are also “his,” not “his or hers.” That’s not a snarky comment; it’s just an example of how treacherous the issues of unfair discrimination are. Even those with the best intentions find it difficult to pull completely away from what others may perceive as signs and appearances of unfair practices.

The difficulty partially explains why the Civil Rights Act has been repeatedly modified and supple- mented. The Equal Employment Opportunity Act of 1972 set down new rules and created a powerful commission to enforce and report on the status of antidiscriminatory efforts across the nation. These reports have played a role in many civil lawsuits brought by individuals or groups against employers suspected of discriminatory treatment.

Additional requirements—some involving affirmative action (to be discussed further on)—were compiled for companies doing business with the US government. While these measures don’t bind or- ganizations operating independently of government contracts, the pure size and spending power of Washington, DC, does send the measures far into the world of business.

So the legal and governmental bulwark set up against racial and other types of discrimination stands on four legs:

1. Racial and similar types of discrimination are directly illegal. 2. Civil lawsuits may be filed by those who feel they’ve suffered from discriminatory practices. 3. Government oversight (the Equal Employment Opportunity Commission) is continuous. 4. Government regulations insist that companies wanting to do business with deep-pocketed

Washington, DC, implement exemplary antidiscriminatory practices.

1.6 The Ethics of Discrimination: Arguments against the Practice It’s difficult to locate a mainstream ethical theory for workplace life that can be twisted to support racial discrimination as it’s defined in this chapter. The arguments mounted against it generally fall into three groups:

1. Fairness arguments typically operate from the assertion that discrimination divides up society’s opportunities in an unacceptable way. (These kinds of arguments are sometimes called “justice arguments.”)

2. Rights arguments typically assert that discrimination contradicts the victims’ basic human rights. 3. Utilitarianism arguments employed in the economic world frequently assert that discrimination

reduces a society’s economic productivity and so harms the general welfare, the happiness of the society.

Fairness, as Aristotle defined the term, is to treat equals equally and unequals unequally. People, that means, are to be treated differently if and only if there are job-pertinent differences between them. Burly men should be favored over thin ones when you’re hiring an offensive lineman in the NFL, but not when you’re looking to contract a coach.

The philosopher John Rawls advocated an ingenious way to, at least as a thought experiment, pro- mote fairness. He proposed that individuals imagine the reality surrounding them as shaken up, with people pulled from their situation and randomly inserted into another. So if you’re a white guy in col- lege looking for a summer job, you probably don’t mind too much that Abercrombie & Fitch is looking for your type more than any other. But if you imagine getting shaken up with your black, Asian, and Hispanic classmates and you don’t know beforehand what race you’re going to get assigned, then maybe you think twice about whether Abercrombie should be allowed to hire whites so pervasively. This is called a veil of ignorance test: you need to imagine how you’d like society to be if you don’t know beforehand exactly where you’ll be placed in it. The imagined reality, presumably, will be one where everyone gets a chance that’s fair.

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rights argument against discrimination

The argument that discrimination is wrong because as humans we’re endowed with a certain dignity and freedom that is abridged by discrimination.

utilitarian argument against discrimination

The argument that discrimination is wrong because it fails to maximize our collective happiness and welfare.

Rights arguments against discrimination typically depart from the premise that as humans we’re all endowed with a certain dignity and freedom that abides regardless of circumstances. These at- tributes are an essential part of what we are: they’re like pregnancy in the sense that you can’t have them halfway. You’re either pregnant or you’re not; you either possess full dignity and freedom just like everyone else or you don’t. If all of us do possess dignity and freedom, then it’s a short step to see that discrimination is an affront to them. Treating one group differently than another is to wrongly claim that they have different levels of basic dignity. Or, from the viewpoint of freedom, discrimination grants one group more freedom in the world than another. Again, the argument here is that dignity and freedom can’t be measured or parceled out; as essential rights, everyone must hold them perfectly, and they must be respected fully.

The utilitarian argument holds that we ought to act in the business world in a way that maxim- izes our collective happiness and welfare. If that’s right, then we all have an interest in ensuring that the most qualified people occupy the various working slots in our economy. Possibly the examples of pro- fessional football and Abercrombie don’t lend themselves very well to this argument, but if we move to other professions, the inadvisability of discrimination becomes clearer. In the field of medical research, we wouldn’t want to lose a breakthrough because the one person who’d have the idea that could cure cancer happens to be Hispanic. The argument, therefore, is simply that as a society we benefit when each individual member is allowed the maximum opportunity to contribute.

1.7 The Ethics of Discrimination: Racism versus Job Qualification While few argue that discrimination is good or justified, there are equally few who deny that some situ- ations do, in fact, allow for discrimination (the actor hired to play Martin Luther King is black, the per- son hired to monitor the women’s locker room is a woman). Between these extremes there stretches a tense set of debates about where the line gets drawn. When is some limited discrimination acceptable?

The lawsuit against Abercrombie & Fitch alleging that the company hires a disproportionately white sales force and favors white employees for the best positions never went to court. Former em- ployee Jennifer Lu turned up on 60 Minutes, CBS news started running stories about how Asians and Mexicans were confined to the stockroom, and with the bad publicity storming, Abercrombie opted to settle the matter and move on. That was probably a good business decision.

Others, however, wanted to push the issue out to see the ethical consequences. One of those was lawyer and talk show host Larry Elder. He made this point: “Abercrombie & Fitch ought to have the right to set their own policies. Look, there’s a restaurant called Hooters. Hooters requires you to have certain kinds of physical accoutrements, and I think people understand that. Should they have a right to hire waitresses because they want to attract a certain kind of clientele who want to ogle at the wait- resses? I think so.”[11]

Closing off the argument with respect to Abercrombie & Fitch, the point is that Abercrombie isn’t selling only clothes but also a look, an image, a kind of social message. And that message is crystallized by the kind of people they hire to walk around their showrooms and smile at consumers: white, attract- ive, fit, upper-middle-class. Not coincidentally, one of the company’s subsidiary lines of clothes is called Prep School. And if that’s what they’re selling—not just clothes but a social message—they should be able to hire the best possible messengers, just as Hooters is allowed to hire the kind of waitresses their clientele wants to ogle and just as the movie producer is allowed to hire a black actor to play Martin Luther King. There’s no racial discrimination here; it’s just business. At bottom, it’s no different from theGrio.com, which is selling a specific product and image that naturally leads to an almost en- tirely black organization. In every case, it’s not that the business starts out with a certain racial (or gender) type that they’ll contract; it’s that they start out with something they want to sell, and as it hap- pens a certain racial type lends itself to the business.

There are two types of responses to this argument. The first is to push back against the premise that the one racial type really does serve the business’s interest better than the others. Rebecca Leung, the CBS reporter for the Abercrombie & Fitch case, shapes her story this way. The idea, Leung asserts, of prep schools and the all-American pursuit of upper-middle-class life that Abercrombie tries to rep- resent belongs equally to all races. There’s no justification, Leung leads viewers to believe, for associat- ing that ideal with a skin color. That’s why her report ends this way:

“All-American does not mean all-white,” says Lu.

“An all-American look is every shade,” Lueng asks.

“Yes, absolutely.”[12]

The other kind of response to the argument that Abercrombie’s business model lends itself to hir- ing whites is to concede the point but then to insist that it doesn’t matter. Because society’s general

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welfare depends on rallying against poisonous discrimination, it should be avoided in every possible case, even those where there might be some rational, business-based reason for engaging in the prac- tice. Abercrombie, the argument goes, may have good reason for seeking out white sales staff. But even so, the larger social goal of developing a color-blind society requires Abercrombie’s participation, and the company ought to be required to participate even against its own short-term economic interest.

1.8 Conclusion For historical reasons in the United States, discrimination in the reproachable sense of the word comes into sharpest focus on questions concerning race. Any distinguishing characteristic, however, can be levered into a scene of unfair marginalization. Women, for example, have suffered mistreatment in ways analogous to the kind discussed here for racial groups. And it doesn’t stop there. Age, national origin, religion, weight, whatever, all of us have features that can be singled out by others and then con- verted into favoritism or negative prejudice in the workplace. Somewhere there’s probably a high exec- utive who’s convinced that individuals with knobby knees can’t do good work. In ethical terms, all these cases may be understood and handled as the question of race has. That is, by thoughtfully de- termining whether the identifying feature—the skin color, gender, age, religion, weight, the knobbiness of the knees—actually has a bearing on the person’s ability to successfully accomplish the tasks fitting the job.

K E Y T A K E A W A Y S

< Racial discrimination is adverse treatment stemming from unfounded stereotypes about a person’s race.

< Favoring or disfavoring members of a racial group may imply racism, or it may reflect a legitimate job requirement.

< Evidence of racial discrimination may be accumulated experimentally, statistically, and episodically.

< Racial discrimination in business can be divided into multiple kinds and intentions.

< The Civil Rights Act of 1964 is a key legal document in the history of discrimination.

< Ethical arguments against discrimination are generally built on theories of fairness, rights, and utilitarian arguments.

R E V I E W Q U E S T I O N S

1. In your own words, what are the three steps defining racial discrimination?

2. What’s the difference between racial discrimination and a preference for race based on an occupational qualification? Provide an example.

3. List and define the six categories of discrimination in a business environment.

4. What are the main legal and governmental remedies set up against discrimination?

5. Why kind of business may favor Asians when hiring, and draw both reasonable defenses and criticisms of the practice?

6. What is the utilitarian argument against racism in the economic world?

CHAPTER 10 THE TENSE OFFICE: DISCRIMINATION, VICTIMIZATION, AND AFFIRMATIVE ACTION 243

2. GENDER DISCRIMINATION AND OCCUPATIONAL SEGREGATION

L E A R N I N G O B J E C T I V E S

1. Define gender discrimination. 2. Consider the ethics of occupational segregation. 3. Discuss the doctrine of comparable worth. 4. Define the glass ceiling. 5. Examine the case of motherhood.

3. DISCRIMINATION: INFERIORITY VERSUS APTNESS Discrimination in the workplace moves in two directions. One is hierarchical, one group or another is stereotyped as simply superior or inferior. Historically, many cases of race discrimination fit on this scale. Discrimination can also move horizontally, however. In this case, divisions are drawn between different groups not so much in terms of general capability, but as naturally suited for some and natur- ally unsuited for other tasks and occupations. Gender discrimination frequently fits into this category.

Here’s a list of professions where the workers are more than 90 percent women: < Dental hygienists < Preschool and kindergarten teachers < Secretaries and administrative assistants < Dental assistants < Speech-language pathologists < Nurses < Child-care workers < Hairstylists and cosmetologists < Receptionists and information clerks < Payroll clerks

And another where the workers are 99 percent (not a typo) male: < Logging workers < Automotive body repairers < Cement masons < Bus and truck mechanics < Electrical power-line installers and repairers < Tool and die makers < Roofers < Heavy vehicle equipment service technicians < Home appliance repairers < Crane and tower operators

The lists come from a blog called The Digerati Life.[13] The author is a software engineer living in Silic- on Valley. Because she’s a she, 78 percent of her colleagues don’t use the same bathroom.[14]

3.1 What Exactly Is Gender Discrimination? Gender discrimination defines analogously with the racial version:

1. An employment decision—hiring, promoting, demoting, firing—adversely or positively affects an employee or applicant

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occupational segregation

The division of jobs into those appropriate for women and those for men.

biological differences (as an explanation for occupational segregation)

The belief that men and women are fundamentally different in terms of basic aspirations and capabilities.

social precedent (as an explanation for occupational segregation)

The belief that ingrained customs and habits explain divergent career paths for men and women.

2. The decision is based on the person’s gender rather than individual merit. 3. The decision rests on unverified stereotypes or generalizations about members of that gender.

The difference, again, is that the stereotypes and generalizations tending to surround women in the United States during our lifetimes have branded the group as naturally suited to some types of work and not others; and, correspondingly, men also find their natural roles pointing in some directions and not others. This division of labor raises provocative questions. More sparks fly when two other factors add to the mix: concrete and broad statistics showing that women receive lower wages than men when doing distinct but comparable work; and women who do pursue career lines dominated by men can find their advance up the promotion ladder halted by a difficult-to-see barrier, a kind of glass ceiling.

So three ethical issues connecting with gender discrimination in the workplace are occupational segregation, comparable worth, and the glass ceiling.

3.2 Occupational Segregation: The Causes What causes occupational segregation? One explanation is biological. Differences, the reasoning goes, that are plainly visible physically also exist on the level of desires and aspirations. Women and men are simply divergent; they pursue distinct goals, define happiness in separate ways, and tend to have dissimilar kinds of abilities. For all those reasons, women gravitate to different kinds of profes- sions. Now, if all those things are true, then we should expect to see just what we do see: significant oc- cupational segregation.

The biological explanation also functions less directly when career paths and family paths conflict. Women who physically carry children find themselves removed—willingly or not—from work for sig- nificant periods. If you see that coming in your not-distant future, then you may opt into a field where that kind of absence is less damaging to the company and your own long-term prospects.

One clean argument against the biological explanation for gender segregation in the workforce starts with the suspicion that visible physical differences may be leading us to mistakenly believe that there are underlying psychological differences where few actually exist. People, the reasoning goes, are making an invalid argument when they suppose that because women and men look different on the outside, they must be different on the inside too. There’s no reason that’s necessarily true, just like there’s no reason to think that a Cadillac painted blue and one painted pink are going to perform differently on the road.

A second and frequently cited explanation for occupational segregation is social precedent. Young men and women making career decisions normally have very limited experience in the work- place and so depend on what others have done. It’s very reasonable, therefore, for a young man trying to decide between, say, going to work as an assistant to a dentist and going to assist a roofer to notice that a lot of other guys are working on roofs, but not many are in dentists’ offices. Women see the same thing, and the occupational segregation that already exists in society gets repeated. In this case, it’s the individual men and women themselves who are effectively volunteering for professional separation.

A third explanation—and the one drawing the sharpest ethical attention—is discriminatory preju- dice. Those in charge of hiring stack the deck to favor one gender over another because of unverified generalizations about differences between men and women. In his book Business Ethics, Manual Velasquez relates an experiment done by the ABC news program Primetime Live. Two early career- ists—Chris and Julie—were outfitted with hidden microphones and tiny cameras and sent out to an- swer the same help-wanted ads. Their experiences were for TV entertainment, not a scientific study, but they do illustrate how discriminatory occupational segregation can work.[15]

Both she and he were in their midtwenties, blond, and attractive. They presented virtually identical résumés, and both claimed to have management experience. What they got from their interviewers, however, was very different. When Julie appeared at one company, the recruiter spoke only of a posi- tion answering phones. The same day the same recruiter offered Chris a management job. In a gotcha- follow-up interview, the flustered recruiter told the camera that he’d never want a man answering his phone.

Another instance wasn’t quite so clear-cut. The two visited a lawn-care company. Julie received a typing test, some casual questions about her fiancé, and was offered a job as a receptionist. Chris’s in- terview included an aptitude test, some casual talk about keeping the waistline trim, and a job offer as a territory manager. When confronted in his gotcha interview, the owner strongly defended his actions by pointing out that being a manager at a lawn-care service means actually doing some of the outdoor work; and Chris—an objectively stronger candidate in the physical sense—seemed more apt for that. The question to ask here—and it’s one that comes up time and again in discussions of occupational se- gregation—is the extent to which the outdoor work requirement is a legitimate reason for hiring Chris or an excuse for excluding Julie (because the owner doesn’t believe women should be in that line of work).

CHAPTER 10 THE TENSE OFFICE: DISCRIMINATION, VICTIMIZATION, AND AFFIRMATIVE ACTION 245

doctrine of comparable worth

Dictates that distinct occupations requiring comparable levels of skill, training, and effort and responsibility should be rewarded with comparable salaries.

3.3 The Ethics of Women’s—and Men’s—Work What kind of ethical arguments can be mounted for and against the idea that occupational segregation ought to exist? Possibly the strongest argument in favor runs through a utilitarian theory—one that judges as ethically correct any act that raises a society’s overall happiness. The theory’s cutting edge is the requirement that individual interests be sacrificed if that serves the greater good. For example, oc- cupations requiring hard physical strength (firefighter, logger, construction) may require strength tests. These tests, which more or less measure brute power, are going to weed out most women—so many, in fact, that it may make practical sense to essentially designate the job as a male realm, and to do so even though it may be unfair to a very few physically strong women. That unfairness is erased, in ethical terms, by the requirement that the general welfare be served.

There are a number of responses to this argument. One is to say that the general position of firefighter should be open to everyone, but every firehouse should make sure there are a few big guys in the mix in case smoke-inhalation victims need to be carried down perilous ladders. Another response is to concede that there are some occupations that may be right for one or another gender but draw the line firmly there and demand equal opportunity everywhere else. Another, more polemical argument is to assert that the goal of a gender-neutral society is so important and worthwhile that if it means sac- rificing performance in some occupations, then the sacrifice should be made. The greater good is better served by occupational equality than by the certainty that the 250-pound weight-lifting guy will be the one who happens to be in the firehouse when the alarm goes off even if it goes off because it’s your apartment that’s on fire.

Another way to argue against occupational segregation of any kind, no matter the circumstances, starts from rights theory and the premise that the highest ethical value is personal freedom and oppor- tunity: what’s always recommendable is maximizing our ability to pursue happiness as each of us sees fit. Within this model, it becomes directly unethical to reserve some jobs for women and others for men because that setup limits both men and women; it impinges on their basic freedom.

Like utilitarian theory, this freedom-based argument can be twisted around to work in the other direction. If individual freedom is the highest ethical good, the reasoning goes, then shouldn’t business owners be able to hire whomever they like? There may be an owner out there who simply doesn’t want to hire guys. Perhaps there’s no rational reason for the exclusion, but if individual freedom is the highest good, there’s no strong ethical response to the preference. The only open pathway is to say that if you don’t like the fact that this owner isn’t hiring men, then you should make your own company and you can hire as many of them as you wish.

3.4 Comparable Worth Going back to the list of gender-concentrated occupations, some on the women’s side really aren’t so different from those on the men’s side in terms of skill and training required, effort exerted, and re- sponsibility held. Take hairstylists and cosmetologists from the woman’s list and automotive body re- pairers from the guy’s list. While it’s true that a lot of the hairdressers wouldn’t be caught dead working in the body shop and vice versa, their jobs really aren’t so different: fixing hair and giving cars makeovers. The wages are different, though, at least according to statistics that come from the San Jose Mercury News. Doing hair will net you about $20,000 a year, and working in the car shop gets you $35,000.[16]

This reality is at odds with the doctrine of comparable worth, which states that when two occu- pations require comparable levels of skill, training, effort, and responsibility, they should be rewarded with comparable salaries. The gender problem associated with comparable worth is that statistical evid- ence suggests that so-called women’s work has consistently garnered lower wages than men’s work. The hairdresser and the body shop example isn’t an anomaly but a representative of the larger reality. According to the US government, the median income of American working women is $27,000, while for men it is $39,000. More, the differences hold when adjusting for educational levels. For high school grads, it is $21,000 versus $32,000. For college grads, it’s $40,000 versus $60,000. At the PhD level, it’s $55,000 versus $78,000.[17]

These statistics don’t tell the whole story, however; they never do. As it happens, statistician is one of those professions where there’s a notable pay gap between genders—$49,000 versus $36,000 as a me- dian salary—and women get the $49,000.[18]

246 THE BUSINESS ETHICS WORKSHOP

glass ceiling

An unacknowledged block on the advance of qualified people—especially women—to high posts in an organization.

3.5 Glass Ceiling What happens when a woman goes into a field traditionally dominated by men and starts strong, re- ceiving salary and treatment comparable with her male workmates but then hits a promotion wall? Called the glass ceiling, it’s the experience of women topping off in their career for, apparently, no reason beyond the womanhood. A good example of the glass ceiling—and also of breaking it—comes from Carly Fiorina, the former CEO of the very masculine Hewlett-Packard. In an interview with the web magazine Salon, she discusses the topic candidly. Five of her ideas come through loudly.[19]

First, in Silicon Valley Fiorina believes there is a glass ceiling at many companies. Second, she buys the notion that women and men are fundamentally different, at least in this way:

they feel comfortable with different kinds of languages and ways of communicating. Compared with Silicon Valley guys, she says, “Women tend to be more communicative, collaborative, expressive. The stylistic differences get in the way [of mutual understanding]. That’s why diversity in the workplace takes real work.”[20]

Third, differences in the way women and men communicate ultimately doom many women’s pro- fessional ascent. As the office culture becomes increasingly male on the way up, women are decreas- ingly able to communicate with and work well with colleagues.

Fourth, Fiorina believes that given the way things are now in Silicon Valley, if a woman wants to break through to the highest echelons of management, she’s probably going to have to learn male rules, and then play by them. For example, she once pulled on cowboy boots and a cowboy hat, stuffed socks down her crotch, and marched into a hall full of (mostly) men to proclaim, “Our balls are as big as any- one’s in this room!” In the Salon interview, she explains it this way:

Fiorina: Part of the reason I succeeded in Silicon Valley was that I talked to people in a language they understood. When I negotiated in Italy, I ate a lot of pasta and drank a lot of wine. In bringing a team together to focus on a common goal, you have to find common language.

Interviewer: And the language of the business world remains male?

Fiorina: Yes, and particularly that case you cited, it was an incredibly male-dominated, macho culture. They understood balls and boots, they understood what that meant.[21]

Fifth, in the medium to long term, Fiorina believes the way to truly demolish the glass ceiling is for wo- men to work their way up (like she did) and occupy more high-level posts. “When I went to HP,” she says, “I hoped I was advancing women in business by putting women in positions of responsibility. But it’s clear that we don’t yet play by the same rules and it’s clear that there aren’t enough women in busi- ness, and the stereotypes will exist as long as there aren’t enough of us.”[22]

3.6 The Special Case of Motherhood One advantage Carly Fiorina had on the way up was a husband who cooperated extensively in rearing her children. Still, women alone physically bear children and frequently hold principal responsibility for their care at least through the breast-feeding stage or further. For that reason, a discrete area of business ethics has been carved out for managing the tension between the legitimate interest businesses have in employees continuing their labors without the occasional childbearing and rearing interrup- tion, and the legitimate interest professional women and society generally hold in motherhood and in ensuring that a healthy generation will be arriving to take over for the current one.

One proposal has been the creation of a dual-track career system: one for women who plan to have children at some point in the not-so-distant future and another for those who either do not plan to have children or envision someone else as assuming primary child-care responsibility (a husband, a rel- ative, a paid nanny). Under this scenario, companies would channel women planning for motherhood and child rearing into positions where work could be interrupted for months or even years and then re- sumed more or less from the same spot. A potential mother would receive an at least informal guaran- tee that her spot would be held for her during the absence, and upon resumption of duties, her career would continue and advance as though there had been no interruption. In fact, in many European countries including Spain, France, and Germany, such leave is actually required by law. In those coun- tries, the birth of a child automatically qualifies one of the parents (the laws generally treat fathers and mothers indiscriminately as caregivers) for an extended leave with the guarantee of job resumption at the end of the period. Laws in the United States are not so worker oriented (as opposed to business ori- ented), though some companies have taken the initiative to offer extended parental absences without adverse career effects. These include Abbott Laboratories, General Mills, IKEA, and others.

Theoretically, granting professional leaves for the fulfillment of parental responsibilities makes sense. The problem is that in the real world and in many industries, it’s nearly impossible to go away for a long time and then resume responsibilities seamlessly. In the interim, projects have been

CHAPTER 10 THE TENSE OFFICE: DISCRIMINATION, VICTIMIZATION, AND AFFIRMATIVE ACTION 247

completed and new ones have begun, clients have changed, subordinates have been promoted, man- agers have moved on, and the organization’s basic strategies have transformed. Reinsertion is difficult, and that leads to the fear that companies and managers—even those with the best intentions—will end up channeling those they presume will seek parental leaves into less important roles. The potential mother won’t be the one chosen to pursue research on the company’s most exciting new product—even if she’s the best researcher—because the firm won’t be able to just put product develop- ment on hold at some point in the future while she’s away. The end result is that the so-called mommy track for professional life becomes the dead end track.

There are no easy solutions to this problem, though there are ways to limit it. Technology can be a major contributor. Just something as simple as Skype can allow parents at home with young children to “come into” the office regularly. Further, companies can, and increasingly are, providing day care facil- ities in the building.

Ethically, one way to manage the conflict between professional life and parenting is to locate the interests of those involved, set them on a scale, and attempt to determine how the issue weighs out. So, who are the primary stakeholders along the mommy track: whose interests should be considered and weighed? The mother, to begin with, has a right to pursue success in professional life, and she has the choice to embark on motherhood. A born child has a right to nurturing care, and to the love parents give. A business owner has a right to hire employees (and fire) employees in accord with rational de- cisions about what will benefit the organization and help it reach its goals. The coworkers and subor- dinates linked to a prospective parent have the right to not be bounced around by someone else’s per- sonal choices. Society as a collective has a responsibility to nurture the growth of a new generation fit to replace those who are getting old.

The next step is to put all that on the scale. In the United States today, the general consensus is that the business owners’ rights to pursue economic success outweigh the parents’ interest in being success- ful in both professional and family life and society’s concern for providing an upcoming generation. That weighing can be contrasted with the one done in most countries of Western Europe where, not incidentally, populations are shrinking because of low birthrates. In Europe, there’s a broad consensus that the workers’ interest in combining professional and personal lives, along with society’s interest in producing a next generation, outweighs the business’s interest in efficiency and profit. For that reason, the already-mentioned laws guaranteeing extended family leave have been implemented.

K E Y T A K E A W A Y S

< Gender discrimination can take the form of occupational segregation.

< Strong ethical arguments may be formed for and against some forms of occupational segregation.

< The doctrine of comparable worth prescribes comparable pay for distinct occupations that require similar capability levels.

< The glass ceiling blocks women from advancing to the highest professional levels for reasons outside of dedication and capability.

< The fact that women can also be mothers introduces a broad set of ethical questions about the rights of employers and a society’s priorities.

R E V I E W Q U E S T I O N S

1. What are the three steps defining gender discrimination?

2. What are some of the causes of occupational segregation?

3. What is an argument in favor of some occupational segregation? What is an argument against occupational segregation?

4. What is comparable worth?

5. What are two explanations for the existence of a glass ceiling?

6. How might the existence of a career track dedicated to those who expect to rear children be criticized in ethical terms?

248 THE BUSINESS ETHICS WORKSHOP

concealable discriminatory trait

A physical or cultural characteristic that may make one a target of discrimination and that may be concealed if the individual chooses—for example, religious faith.

4. THE DIVERSITY OF DISCRIMINATION AND VICTIMIZATION

L E A R N I N G O B J E C T I V E S

1. Indicate characteristics beyond race and gender that may be targeted for discrimination. 2. Form a general definition of discrimination in the workplace. 3. Define minority status. 4. Analyze victimization.

4.1 The Diversity of Discrimination There’s a difference between history and ethics. Historically, racism and sexism have been the darkest scourges in the realm of discrimination. In straight ethical terms, however, discrimination is discrimin- ation, and any isolatable social group is equally vulnerable to negative prejudice in the workplace. The Civil Rights Act of 1964 extends protection to those stigmatized for their religion or national origin. In subsequent years, amendments and supplements have added more categories, ones for age and disabil- ity. Currently, there are no federal laws prohibiting discrimination based on sexual orientation, though measures have been enacted in states and localities. Other measures identifying and protecting further distinct groups exist on local levels.

What holds all these groups together is that they fit into the most general form of the definition of discrimination in the economic realm:

1. A decision affects an individual. 2. The decision is based on personal characteristics clearly removed from job-related merit. 3. The decision rests on unverified generalizations about those characteristics.

Even though discrimination in the realm of business ethics can be wrapped up by one definition, it re- mains true that distinct groups victimized by discrimination have unique and diverse characteristics affecting the way the issue gets managed. Two types of characteristics will be considered here: discrim- ination based on traits that are concealable and discrimination based on traits that are (eventually) universal.

4.2 Concealable and Inconcealable Status One of the enabling aspects of race and gender discrimination is that it’s normally easy to peg someone. If you don’t think Asians do good work, you’re probably going to see who not to hire. The same goes for gender, age, and many disabilities.

Other traditionally discriminated-against groups aren’t so readily identifiable, though: the charac- teristics marking them as targets are concealable. For example, it’s not so easy to detect (and not so difficult to hide) religious beliefs or sexual orientation. John F. Kennedy, many young people are sur- prised to learn today, faced considerable resistance to his presidential ambitions because of his religion. In fact, he considered the fact that he was the first Roman Catholic president of the United States as one of the higher virtues of his story. While the Protestant-Catholic divide has faded from discriminat- ory action in America, other splits have taken its place—Christian and Muslim, for example. No matter the particular religion, however, most individuals going into the work world do have the opportunity to simply reduce that part of their identity to a nonissue by not commenting on or displaying their reli- gious beliefs.

A similar point can be added to considerations of national identity. Only a generation ago Italians were disdained as “wops.” Legendary football coach Joe Paterno (no stranger to insults himself: “If I ever need a brain transplant, I want it from a sports reporter because I know it’s never been used.”) re- members being derided as a wop in his career’s early days. If you wander down the street calling people a “wop” today, however, hardly anyone will know what you’re talking about, which indicates how quickly discrimination against a group can fade when the source (in this case nationality) isn’t readily visible.

Ethical questions raised by the possibility of invisibility include “In the business world, do those who feel they may be discriminated against for a personal characteristic that they can conceal have any

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universal discriminatory trait

A physical or cultural characteristic that may make one a target of discrimination and that everyone has.

minority

The status of being vulnerable to discrimination.

responsibility to conceal it?” and “If they choose not to conceal, and they’re discriminated against, do they bear any of the blame for the mistreatment?”

4.3 Universality versus Individuality One obvious reason it’s easy for white men to discriminate against racial minorities and women is that they don’t have to worry about riding in that boat themselves. Age is different, however. All of us have gray years waiting at the end of the line. That hasn’t stopped people from denying jobs to older work- ers, however. Take this report from California:

When a then-emerging Google recruited engineer Brian Reid in the summer of 2002, it appeared to have landed a Silicon Valley superstar. Reid had managed the team that built one of the first Internet search engines at AltaVista. He’d helped co-found the precursor company to Adobe Systems. He’d even worked on Apollo 17.

But within two years, Google decided that the 54-year-old Reid was not a “cultural fit” for the company and fired him, allegedly after co-workers described him as “an old man,” “slow,” “sluggish” and “an old fuddy-duddy.” Reid responded with an age discrimination lawsuit blasting Google’s twentysomething culture for shunning his generation in the workplace.[23]

Reid can take satisfaction in knowing that, eventually, these twentysomethings are going to get what’s coming to them. Is it more than that, though? Is the fact that they too share that fate a license for their discrimination? Assuming those who fired Reid aren’t hypocrites, assuming they accept that one day they too will be subject to the same rules, can Reid really claim any kind of injustice here? In terms of fairness at least, it seems as though the Google whippersnappers should be able to treat others in terms they would accept for themselves.

On the other side, if his work performance matches his younger peers, if the only difference between Reid and the others is that his hair is gray and he doesn’t know who Lady Gaga is, then his case does fit—at least technically—the definition of invidious discrimination. Google might be wrong on this one.

Regardless of which side you take, there’s a fundamental ethical question here about whether dis- crimination can count when it’s based on a characteristic that’s universal, that everyone shares.

4.4 What Is a Minority? The boundaries marking who can rightfully claim to belong to a group falling victim to systematic dis- crimination in the workplace are shifting and uncertain—in different times and places the victims share different characteristics. For that reason, it makes sense to try to form a definition of personal vulnerability that doesn’t rely only on describing specific personal traits like skin color or gender but that can stretch and contract as society evolves. The term minority, as understood within the context of workplace discrimination, is sometimes summoned to perform this role.

To be part of a minority means to belong to a group of individuals that are the minority within a specific organizational context. Whites, for example, are not a minority population in the United States, but white students are a minority at the University of Texas–San Antonio. Similarly, women make up more than 50 percent of the population but count as a minority in corporate boardrooms where they represent only a small percentage of decision makers.

Being part of a minority doesn’t just mean suffering a numerical disadvantage; it also means hav- ing so few peers in a situation that you’re forced to adapt the language, the styles of dress, the sense of humor, the nonwork interests, and so on of people very different from yourself. In the case of the minority white population at University of Texas–San Antonio, it’s difficult to claim that their numer- ical minority status also forces them to adapt in any significant way to the Hispanic majority—whites can get by just fine, for example, without speaking any Spanish. By contrast, the case of Carly Fiorina wadding up socks in her crotch and screaming out that she has big balls, this is minority behavior. For minorities in a man’s world, if you want to get ahead you have to adapt. To a certain extent, you need to speak and act like a man.

The term minority can be defined by three characteristics: 1. Physical and/or cultural traits set a group of individuals within a community apart from the

customs and members that dominate the collective.

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strong victimization

Claiming to suffer discrimination where it doesn’t exist and using the claim to abuse others.

weak victimization

Using discrimination as an excuse for one’s own failures.

2. The physical and/or cultural traits that set the group apart are either disapproved of, or not understood by the dominant group. In Carly Fiorina’s case, these traits included her gender and, more importantly, her feminine use of language. As she put it, “The stylistic differences get in the way”[24] of trying to communicate well with male colleagues. She was a minority because she wasn’t well understood.

3. A sense of collective identity, mutual understanding, and common burdens are shared by members of the minority group. Fiorina sensed this collective identity and burden very clearly when she said, “I hoped I was advancing women in business by putting women in positions of responsibility. But it’s clear that we don’t yet play by the same rules as men, and it’s clear that stereotypes about women in business will exist as long as there aren’t enough of us.”[25]

The advantage of using the term minority to name a group vulnerable to discrimination in the work- place is connected to the rapidly changing world, one where those subjected to discriminatory treat- ment come and go. For example, a tremendous influx of Spanish-speaking immigrants from Mexico have recently made that group a target of sharper discrimination, while the marginalization that the Irish once experienced in the United States no longer seems very threatening. There’s no reason to be- lieve that this discriminatory evolution will stop, and in the midst of that shifting, the term minority al- lows the rules of vulnerability to discrimination in the workplace to remain somewhat steady.

4.5 What Is a Victim? As the number of characteristics classified as vulnerable to discriminatory mistreatment has expanded, so too has a suspicion. It’s that some of those claiming to suffer from discrimination are actually using the complaints to abuse others, or to make excuses for their own failures. This is called victimization.

To accuse someone of being a victim is to charge that they are exploiting society’s rejection of dis- crimination to create an unfair advantage for themselves. There are a range of victimization strategies running from strong to weak. Strong victimization is individuals in protected groups who aren’t suffering any discrimination at all claiming that they are and making the claim for their own immediate benefit. This is what’s being alleged in an Internet post where a supervisor writes the following about an employee:

This person came out & stated in this meeting that I use a racial slur on a very regular basis in my vocabulary. With my profession, this is something that is EXTREMELY HARMFUL to my status in my job, my respect in my job & community, my reputation, etc. But that word has NEVER been in my vocabulary. I am SO UPSET I do not know what to do![26]

Assuming this supervisor’s allegations are true, then the employee was never subjected to racist language or offended by slurs. There was no workplace discrimination. Instead, it sounds like the em- ployee may actually be disgruntled and is aiming for revenge by getting the supervisor in trouble. If that’s what’s going on, then the accusation of racial discrimination has become a workplace weapon: the charge can be invented and hurled at another with potent effect.

Weak victimization occurs when someone works in a context where discrimination is a constant subject of attention, one permeating daily life in the office. In that situation, it can happen that a work- er suffering an adverse work evaluation (or worse) comes to the conclusion that it wasn’t poor job per- formance but minority status that actually caused the negative review. (Possibly, one of the few univer- sal human truths is that we all find it easier and more comforting to blame others for our problems than ourselves.) In the interview with Carly Fiorina—which was done not long after she’d been fired from Hewlett-Packard—the interviewer broaches this possibility very gingerly. Here’s how she puts the question:

I’m predisposed to be sympathetic to the notion that you were treated differently because of your gender. But I’ve also read a lot about actual business mistakes you made.

Fiorina comes back with an ambiguous answer and the interviewer lets it go. For a while. Sud- denly, however, after a few softball questions she tries again, more forcefully:

CHAPTER 10 THE TENSE OFFICE: DISCRIMINATION, VICTIMIZATION, AND AFFIRMATIVE ACTION 251

Interviewer: I want to press you on the fact that you missed a quarter’s projections big-time…

Fiorina: Wouldn’t be the first top company that missed a quarter either. Or the last.

Interviewer: Right. But that miss was huge. And you wrote in the book that “building a culture of accountability and execution of discipline requires real and clear consequences for failure to perform.” If you had been told that you were fired because you missed the quarter, would you have understood?[27]

What’s being intimated here is that Fiorina got so caught up in being a woman in a man’s world that when she got fired, she was so invested in that battle-of-the-sexes way of seeing things that she ended up suspecting sexist discrimination where maybe there wasn’t any.

Weak victimization means that someone is twisting discrimination claims into an excuse for their own imperfections, shortcomings, and failures. Everyone faces adversity in their lives. When that hap- pens, the choices are deal with it or collapse. Accusing someone of being a victim in the weak sense is saying they’re collapsing; they’re using racism or sexism or whatever as an excuse to not confront what most people face every day: an imperfect and sometimes difficult world. So weak victimization is an ac- cusation tinged with exasperation. Here’s what the accusation sounds like in longer form, as posted on an Internet forum:

I genuinely don’t believe that in this country that persecution of minorities exists anymore. This is not to say that these things don’t exist, of course they do in isolation, but being black or gay or a woman is not in any way a barrier to achieving anything that you want to achieve.

I told her that she was playing the victim against an oppression that doesn’t exist, is looking for excuses about things she can’t do rather than looking at what she can do (which is anything she wants) and that she’s being patronizing towards all those from ‘minority’ groups who had gone on to be successful. Thatcher didn’t whine about latent sexism, Obama didn’t complain that being black meant he wasn’t able to do the most powerful job in the world.[28]

In the ensuing discussion, quite a few posters pick up on the claim that “being black or gay or a woman is not in any way a barrier to achieving anything that you want to achieve.” Some agree, some not so much. What’s certain is that somewhere between Carly Fiorina stuffing socks down her pants and Carly Fiorina leading one of the world’s most powerful companies, and somewhere between black slavery and a black president, there’s a line. No one knows exactly where, but it’s there and it divides a reality where sexism and racism are vile scourges from another reality where they’re things people whine about.

An ethical argument against victimization—against someone playing the role of a victim of dis- crimination—can be outlined quickly. It begins with the duty to respect your own dignity, talents, and abilities. Those blaming their failures on others are essentially giving up on their own skills; they are concluding that their abilities are worthless when they may not be. If Carly Fiorina believes that her gender makes success in Silicon Valley impossible, and it really doesn’t, then by denying her own talent she’s subtracting from her own dignity.

K E Y T A K E A W A Y S

< Discrimination may be applied in a society to a group defined by any physical or cultural trait.

< A successful general definition of discrimination in the workplace must evolve as society and the face of discrimination change.

< Minority is a general category meant to include those vulnerable to discrimination.

< Victimization occurs when vulnerability to discrimination converts into a weapon to use against others, or an excuse for failure.

R E V I E W Q U E S T I O N S

1. In your own words, explain the general definition of discrimination.

2. What’s the difference between a concealable and inconcealable characteristic that may leave one vulnerable to discrimination?

3. In your own words, define what it means to be a minority.

4. What’s the difference between strong and weak victimization?

252 THE BUSINESS ETHICS WORKSHOP

race-based scholarships

Scholarships open only to specific racial (or ethnic) groups

5. THE PREVENTION AND RECTIFICATION OF DISCRIMINATION: AFFIRMATIVE ACTION

L E A R N I N G O B J E C T I V E S

1. Define affirmative action. 2. Elaborate arguments for and against affirmative action. 3. Discuss the ethics of affirmative action. 4. Indicate why some organizations implement affirmative action policies.

5.1 Race-Based Scholarships “The scholarship,” according to Carlos Gonzalez, an overseer appointed by a federal court, “was de- signed essentially as a jump-start effort to get the process of desegregation under way.” He was talking about a new race-based scholarship at Alabama State University (ASU). It was triggered by a federal court’s finding that “vestiges” of segregation remained within the Alabama university system: the state was ordered to spend about $100 million to racially diversify the student body.

Two years later, 40 percent of ASU’s budget for academic grants went to minority students even though they represented only about 10 percent of the student population. That meant minority stu- dents got about $6 of aid for every $1 going to everyone else.

One beneficiary of diversification was a grad student who accumulated $30,000 in scholarship money. She said that she would’ve attended the school anyway, but getting the money because of her skin color was an added bonus. “I think it’s wonderful,” she exclaimed, according to a CNN report.[29]

Not everyone came off so well. One big loser was another grad student, Jessie Tompkins. The effort to balance the student body racially meant funding he’d been promised got reassigned to others. He re- membered the moment vividly. He’d received an assistantship for three years, but when he went to ap- ply the next year, he learned that the scholarships had been reserved for those with a different skin col- or. “I said, ‘Ma’am?’ She said, ‘You can apply, but you won’t get it.’”[30]

As word of the new scholarship policy circulated, temperatures rose. They heightened even more when news got out that the race balancers were more lucrative than the old funding mechanisms that had been available to everyone. The minority set-asides paid for tuition, books, and for room and board, and then added on almost $1,000 for personal use. While the new students got all that just for showing up inside their color-appropriate skin, Tompkins remembered that he hadn’t even received enough to fully cover tuition; in exchange for his aid, he’d worked for the school by helping coach the track team and by scheduling tennis court use.

The situation reached a boil with one more detail: the revelation that the minority scholarship re- cipients weren’t as academically qualified as those including Tompkins who were now suddenly being turned down at the funding office. To qualify for financial aid, the new recipients only needed a C aver- age, significantly below what had been required of all applicants in the earlier, color-blind system. That led the editor of the university newspaper, Brandon Tanksley II, to express his frustration and anger this way, “It’s not that they’re minority students, it’s that they’re not competitive.”[31]

As for Jessie Tompkins, with his scholarship no longer available, he was forced to drop out and take a job handling packages at United Parcel Service. The next year he returned on a part-time-stu- dent basis and once again applied for his old scholarship. Again he was rejected. In a newspaper inter- view he said, “We don’t need race-based quotas. I don’t want anyone telling my children they’re the wrong color. If you want something, you work for it; you just work for it.”[32]

Eventually, Tomkins connected with the Center for Individual Rights, a nonprofit public interest law firm with conservative and libertarian leanings. The firm was experienced with this kind of com- plaint: it had previously led a charge against the University of Texas’s affirmative action program. In an article in the Wall Street Journal, Tompkins compares himself to a plaintiff in that important case, Cheryl Hopwood: “We were bumped aside, regardless of our qualifications, because of our race.”[33]

Tompkins says he’s just like Hopwood, even though she’s a woman and he’s a man, and even though she’s white and he’s black.

As for the administration at the traditionally black Alabama State, they chose not to respond to Tompkins directly, but they did stand behind their affirmative action program. William Hamilton Har- ris, president at ASU, defended the set-asides this way, “Bringing whites and blacks together on campus will broaden the quality of education and the quality of life at Alabama State.”[34]

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affirmative action

Measures implemented to advance toward fairness for minorities in the workplace, usually including some form of preferences for certain minority groups.

5.2 What Is Affirmative Action? The Civil Rights Act aimed to blind organizations to gender and race and similar distinctions removed from merit. The idea behind the law is an ideal, a theoretically perfect society where discrimination in the invidious sense doesn’t exist. Unfortunately, the real world rarely lives up to ideals. Affirmative action enters here, at the realization that things won’t be perfect just because we make laws saying they should be. What affirmative action does—as its name indicates—is act. It’s not a requirement that or- ganizations stop discriminating; it’s a set of preferences and policies that aggressively counter discrim- ination, usually in ways that themselves hint at discrimination. There is, even ardent defenders admit, a troubling element of fighting fire with fire where affirmative action operates.

In practice, affirmative action comes in various strengths: < In the strongest form, quotas are employed to guarantee that individuals from disadvantaged

groups gain admittance to an organization. A number of slots—whether they are seats in a classroom or posts in an office—are simply reserved for individuals fitting the criterion. Since quotas inescapably mean that certain individuals will be excluded from consideration for certain posts because of their race, gender, or similar trait, they’re relied on only infrequently.

< In strong form, significant incentives are deployed to encourage the participation of minority groups. In universities, including the historically black Alabama State University, special scholarships may be assigned to attract whites to campus. In private companies, bonuses may be offered or special accommodations made for targeted individuals. A mentor may be assigned to guide their progress. Statistics may be accumulated and care taken to ensure that salary hikes and promotions are being distributed to members of the aggrieved demographic.

< Moderate affirmative action measures typically mean something akin to the tie goes to the minority. Whether a university is admitting students to next year’s class or a business is hiring new sales representatives, the philosophy here is that if two candidates are essentially equally qualified, the one representing a disadvantaged group will be selected.

< Weak affirmative action measures refuse to directly benefit one or another identity group. Steps are undertaken, however, to ensure that opportunity is spread to include minority candidates. Frequently, this means ensuring that the application pool of candidates for a post or promotion includes individuals from across the spectrum of genders, races, and similar. A commitment to implement his policy was part of the Abercrombie & Fitch discrimination lawsuit settlement. The company in essence said they’d been doing too much recruiting at overwhelmingly white fraternities and sororities, and they promised to branch out.

The history of affirmative action has been brief and turbulent. Since the early 1970s, the courts—including the US Supreme Court—have visited and revisited the issue, and repeatedly re- formed the legally required and allowed strength of affirmative action. The specific physical and cultur- al traits affirmative action policies address have also stretched and contracted. In the midst of all that, individual states have formed their own rules and guidelines. And for their part, companies have scrambled to bring policies into line with accepted practice and, in some cases, to take the lead in estab- lishing standards. Because there’s no sign that the legal and historical developments will settle in the near future, this section will concentrate only on the ethics and the broad arguments surrounding affirmative action.

5.3 Arguments for and against Affirmative Action Policies Arguments in favor of affirmative action include the following:

1. Affirmative action is necessary to create fairness and equal opportunity in organizations because discrimination is so ingrained. When Carly Fiorina went to Hewlett-Packard, she found a culture so thoroughly masculine that it was difficult for her to communicate well with her colleagues. In that kind of environment, one where it’s difficult for a woman to really make herself understood, forcing women into the workforce is necessary to open channels of communication so that more may flow without needing the help. Similarly at the historically black Alabama State University, the concern was that few white students would want to be the first to confront the specific traditions and customs of the longtime black school. Consequently, it’s necessary to force the doors open with attractive scholarships so that later, with the comfort level raised, more whites will follow.

2. Affirmative action will stimulate interest in advancing at lower levels of the organization. Even if Hewlett-Packard really is gender neutral with respect to picking a CEO, it may be necessary to put a woman in the post so that younger women at the company feel that the way is open to the very highest levels. In other words, it’s not until people actually see that they can become a CEO

254 THE BUSINESS ETHICS WORKSHOP

or enroll at Alabama State that they really make the attempt. In the absence of that seeing, the aspiring may not be there and the result is a company without women leaders, or a historically black university without whites, even though the doorways are wide open to them.

3. Affirmative action benefits third parties. Sometimes we think of affirmative action as being about a tight set of winners and losers. When Carly Fiorina went to HP, it’s very possible that a white guy didn’t get the job. When a white student got a scholarship at Alabama State, Tompkins lost his. But the stakeholders don’t end there. Society as a whole will be more harmonious as discrimination recedes. To the extent that’s true, the tangible benefits of affirmative action climb significantly even while it remains true that there are individual losers.

4. Affirmative action can reduce tensions in a university, an office, or any organization by offering assurances that discrimination of minorities will not be tolerated, and also by opening the workplace to a diversity of viewpoints.

5. Affirmative action benefits organizations by helping them reach their goals. The more open an organization is to all candidates for all positions, the better the chance that they’ll find someone truly excellent to fill the role. Affirmative action, by expanding the range of people considered for posts, helps the organization excel in the long term.

6. Affirmative action is necessary as compensation for past wrongs. Even if tomorrow all discrimination magically disappears, there’d still be a long legacy of suffering by minorities who didn’t get the opportunities available to their children. By giving those children a little advantage, some of the historical unfairness balances out.

Common arguments against affirmative action include the following: 1. Affirmative action is discrimination (just in reversed form), and therefore it’s wrong. When you

privilege a minority at the expense of, say, a white male, you’re treating the white male unfairly because of skin color and gender, and that must be unacceptable because the reason we have affirmative action in the first place is that we’ve all agreed that racial and gender discrimination are unacceptable.

2. Affirmative action is discrimination (just in reversed form), and therefore it reinforces what it combats. When you privilege a minority at the expense of, say, a white male, you’re treating the white male unfairly, and so you’re sanctioning the way of thinking that caused the problem in the first place. When you start selecting people for scholarships or jobs because of their skin color or gender, the larger point is you’re reinforcing the habits of discrimination, not eliminating them.

3. The best way to eliminate discrimination is to let the law, markets, and time do their work. The law, which prohibits discrimination, should be enforced scrupulously, no matter who the infractor might be. More, companies that are discriminatory will put themselves out of business in the long term because competitors that hire the best talent regardless of minority status will eventually win out. With time, the conclusion is, discrimination will be stamped out, but trying to hurry the process may just create social rancor.

4. Affirmative action can be unfair and damaging to third parties. Surgeons, firefighters—those kinds of jobs are vital to all individuals. Lives are at stake. If a surgeon who otherwise would have failed medical school eventually got her degree because the school needed to graduate a few minority female doctors to fulfill their affirmative action requirements, the people who pay may be patients.

5. Affirmative action is unfair to minorities who are treated as tokens. Minority candidates for positions who would win the post on merit alone see their hard work and accomplishments tarnished by suspicion that they didn’t really earn what they’ve achieved. Minorities, consequently, can never be successful because even when they merit respect in the classroom or in the workplace, they won’t get it.

6. Affirmative action creates a tense organization. The web of resentments lacing through classrooms and offices touched by affirmative action are multiple and complex. Nonminority workers may resent special privileges given to those favored by affirmative action. Also, because such privileges are handled discretely by HR departments, the tensions might exist even where affirmative action isn’t active: suspicion that others are receiving special treatment can be as aggravating as the certainty that they are. The list of potential angers continues, but the larger problem with affirmative action is the social stress it may create.

7. Affirmative action damages organizations. By forcing them to evaluate talent in ways outside of merit, it diminishes their competitiveness, especially against companies from other states or nations where affirmative action implementation is less rigid.

8. Affirmative action doesn’t compensate past wrongs. Those who suffer today because their scholarship or their promotion is taken by an otherwise undeserving minority are paying the

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price for past discrimination even though they may have never discriminated against anyone. Further, those who benefit today aren’t the ones who suffered in the past.

Finally, an important point to note about the debate swirling around affirmative action is that there’s broad agreement on the goal: diminishing and eliminating discrimination in organizations. The con- flicts are about how best to do that.

5.4 The Greater Good versus Individual Rights: The Ethical Prism of Affirmative Action In business ethics, few subjects raise emotions like affirmative action. There are a number of reasons, and one is that the ethics are so clear. In all but its weakest form, affirmative action stands almost straight up on the divide between individualism and collectivism.

< Do you belief ethics are about individual rights and responsibilities, or should ethics revolve around society and what benefits the larger community?

< Where does right and wrong begin? Is it with you and me and what we do? Or is it the society as a whole that must be set at the start and before any other concern?

If you believe that individuals center ethics, it’s going to be hard (not impossible) to defend favoritism, no matter how noble the goal. An ethics based on fundamental personal duties—especially the require- ment for fairness—demands that all men and women get an even shot in the workplace. Any swerve away from that principle, whether it’s to favor whites at a historically black university in Alabama, or women in Silicon Valley, or any other minority group anywhere else, is going to be extremely difficult to justify. Further, if you believe that ethics begins with individuals and their rights to freedom and to pursue happiness, then blocking the opportunities allowed for some just because they don’t fit into a specific race or gender category becomes automatically objectionable.

On the other side, if you believe in the community first, if you think that society’s overall welfare must be the highest goal of ethical action, then it’s going to be hard (not impossible) to deny that some form of affirmative action balancing, at some places and times, does serve the general welfare and therefore is ethically required. Thinking based on utilitarianism accepts that divvying out opportunities in terms of minority status will harm some individuals, but the perspective demands that we only bear in mind the total good (or harm) an action ultimately does. With respect to affirmative action, it may be true that its proponents sometimes push too far, but it’s very difficult to look at workplaces and schools through the second half of the twentieth century and not concede that society as a whole does in fact benefit in at least some of the instances where special efforts are made to support the opportun- ities of some historically disadvantaged groups. Specific individuals may suffer when these social engin- eering strategies are implemented, but the general benefit outweighs the concern.

5.5 Why Do Public Institutions and Private Companies Implement Affirmative Action Policies? There are a number of reasons organizations implement affirmative action policies, and not all are mo- tivated by social idealism. First, some companies are simply required to do so because they want to work for the US government. According to current law, all businesses holding contracts with Washing- ton, DC, in excess of $10,000 are required to have at least a weak affirmative action program in place. With respect to public institutions including universities, since their funding derives to a significant ex- tent from the government, they typically are subject to governmental policy directives.

Another very practical reason affirmative action policies are implemented is to prevent future law- suits. The suing of organizations, businesses, and individuals for damages alleging discrimination can be quite lucrative, as the $40 million lawsuit against Abercrombie & Fitch indicates. More, a business may even choose to quickly hand over millions of dollars to settle a lawsuit of dubious merit just to avoid the bad publicity of a nasty, public, and prolonged court fight. Lawyers, of course, have picked up on this and are constantly probing for weak organizations, ones where just the appearance of some kind of discrimination may be enough for a shakedown. Given that reality, prudent companies will take preventative action to insulate themselves from claims that they’re discriminatory, and an affirm- ative action policy may serve that purpose.

A set of more positive reasons for an organization to implement affirmative action policies sur- rounds the belief that companies benefit from a diverse workforce:

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utilization analysis

A study of whether an organization is taking full advantage of the human resources available in its geographic area.

< Diversity may help win business with a new consumer group. < Diversity may help break minds out of ruts or just shake things up creatively. < An affirmative action policy may be part of an organizational strategy to benefit from underused

human resources in an area. This strategy generally begins with a utilization analysis, which is a spreadsheet representation of all the work positions in an organization, along with the characteristics of those filling the slots and then a comparison between those numbers and the demographic of qualified people in the immediate geographic region. If, to take a simple example, the company’s legal team is 90 percent white, and local data shows that 50 percent of the area’s lawyers are Asian, that tends to indicate the area’s legal resources are being underutilized: there are a lot of good Asian legal minds out there that for some reason aren’t getting into the company workforce.

Finally, regardless of whether an affirmative action policy may help the bottom line by protecting against lawsuits or by improving employee performance, some organizations will implement a pro- gram because they believe it’s part of their responsibility as good corporate citizens in a community to take steps to serve the general welfare.

K E Y T A K E A W A Y S

< Affirmative action seeks to end discrimination by giving some amount of preference to minorities.

< There are multiple strong arguments in favor of and against affirmative action.

< The ethics of affirmative action center on the question of whether the individual or the community should receive priority.

< Organizations implement affirmative action policies for reasons of self-interest or for altruistic reasons.

R E V I E W Q U E S T I O N S

1. What are the differences between strong and weak affirmative action?

2. Explain two arguments in favor of affirmative action.

3. Explain two arguments against affirmative action.

4. Why does conflict between individualism and collectivism exist at the core of the ethics of affirmative action?

5. Why may a company pursue a strong affirmative action policy?

6. CASE STUDIES

6.1 The Zinger and the Slur

Source: Photo courtesy of David Goehring, http://www.flickr.com/photos/carbonnyc/99785459/.

Football coach Joe Paterno’s on-field prowess is only slightly more legendary than his sharp tongue. This is one crowd favorite: “If I ever need a brain transplant, I want one from a sports writer because I’ll know it’s never been used.”[35]

CHAPTER 10 THE TENSE OFFICE: DISCRIMINATION, VICTIMIZATION, AND AFFIRMATIVE ACTION 257

Most people find this to be pretty funny. And though it rubs some sports writers the wrong way, no one is go- ing to file a lawsuit or claim antidiscriminatory protection is needed to protect the offended. On the other hand, JoePa—as he’s called around Pennsylvania—himself suffered taunting as a younger man. People called him a “wop,” a slur attacking someone’s Italian heritage (like the more common “guido” or calling a Chinese person a “Chink”).

Q U E S T I O N

1. From an ethical viewpoint, and within a discussion of discrimination, why does the brain transplant zinger get a green light while the wop slur seems objectionable?

6.2 Working at Columbia University

Source: Photo courtesy of Tim Schapker, http://www.flickr.com/photos/albany_tim/3536902765.

This comes from the Columbia University website: “As an equal opportunity and affirmative action employer, the University does not discriminate against or permit harassment of employees or applicants for employment on the basis of race, color, sex, gender (including gender identity and expression), pregnancy, religion, creed, national origin, age, alienage and citizenship, status as a perceived or actual victim of domestic violence, disab- ility, marital status, sexual orientation, military status, partnership status, genetic predisposition or carrier status, arrest record, or any other legally protected status.”[36]

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Q U E S T I O N S

1. Looking at this list of characteristics that Columbia doesn’t discriminate against, can you quickly put in your own words what each of them means?

2. What’s the difference between unintentional and intentional discrimination?

< Are some of these characteristics more vulnerable than others to unintentional discrimination? Which ones? Why?

< Are some of these characteristics more vulnerable than others to intentional discrimination? Which ones? Why?

3. Which of the protected characteristics are concealable, meaning that in most cases a job applicant could fairly easily hide or not reveal whether he or she has the trait? Which aren’t so concealable?

4. Which characteristics are universal (we’re all afflicted and therefore vulnerable to discrimination) and which ones are individual (some of us have the trait and some don’t)? In your opinion is one group more vulnerable to discrimination? Why?

5. If you wanted to stop discrimination at Columbia University, could you rank the protected characteristics in terms of their importance? Which forms of discrimination would be most important to combat and which wouldn’t matter so much? Or are they all equally important? Justify your answer.

6. Are there any characteristics you would add to the list? In terms of doing ethics, is there any problem with a list this long?

7. Are there any characteristics that really shouldn’t be on the list? Which ones? Why?

8. Hypothetically, John Smith has applied for a maintenance post at Columbia. The job entails routine and emergency plumbing and fixing of general problems, everything from burned-out lightbulbs to graffiti. More or less, the job is to walk around and make sure things are in working order. He’d be working the night shift from 11 p.m. to 7 a.m. His assigned buildings would be a classroom and three coed dorms. He has been arrested three times for attempted rape of young women, but there was never enough evidence to convict.

< Susan Rieger heads the Columbia University employment office. It’s part of her job to defend the school’s policies. In ethical terms, how do you suppose she might defend Columbia’s refusal to discriminate on the basis of arrest record?

9. Columbia won’t discriminate on the basis of religious belief. Historically, some creeds have been singled out more than others for abuse, but one that’s not often found on the list of mistreatment is Haitian Voodoo. Houngan Hector of New Jersey identifies himself as an asogwe priest of Haitian voodoo. His story is interesting. He claims to have been “mounted” by an ancestor at the age of seven, and so began his spiritual journey. Eventually, it led Houngan Hector to perform spiritual cleansings for money. They haven’t always gone well. According to this newspaper story in the Philadelphia Daily News: “Lucille Hamilton paid $621 to have her ‘spiritual grime’ removed by voodoo high priest Houngan Hector in an ordinary townhouse in Camden County. Hamilton, 21, a male living as a woman, flew in on Friday from her home in Little Rock, Arkansas to take part in the three-day spiritual cleansing. By Saturday night Hamilton was dead, and authorities are awaiting results of an autopsy and toxicology tests to determine exactly what happened.”[37]

Here’s Houngan Hector’s advertisement for his services on his MySpace page, as it was reported in OddCulture: “I have over 15 years of experience helping individuals resolve their issues, and well over 9 years of helping people through the means of the Haitian Voodoo tradition. Having gotten individuals out of jail, brought lovers back, and improved people’s financial situation, I keep myself humble remembering it is not I who does it. It is God and Ginen who resolves.”[38]

The three basic ethical arguments against discrimination (and, in this case, discrimination based on personal religious belief) are fairness, rights, and utilitarianism.

< Choose one and make the case that Houngan Hector—who was never charged with any crime—should be treated like any other applicant for a job at Columbia University.

< Can any of the three arguments be used to show that discriminating against Haitian voodoo believers is ethically acceptable, even recommendable?

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6.3 Susan Rieger in Trouble: Randy Raghavendra and Zenobia White- Farrell

Source: Photo courtesy of Richard Rutter, http://www.flickr.com/photos/clagnut/46815739.

Susan Rieger heads Columbia University’s Office of Equal Opportunity and Affirmative Action, and she has a tough case with Randy Raghavendra. He’s an analyst at Columbia’s Office of Institutional Real Estate who got passed over for a promotion. The spot went to a younger white woman. Raghavendra, who’s a dark-skinned Indian American, accused that “Columbia practices blatant racial discrimination and various deceptive tactics to keep out blacks and other dark-skinned minorities from higher-paying managerial and executive positions of power.”[39]

260 THE BUSINESS ETHICS WORKSHOP

Q U E S T I O N S

The case’s specifics go back and forth:

1. Raghavendra points out that when he interviewed for the promotion, it had already been given to the white woman. His interview, therefore, was a “joke,” as he put it, “a fake interview.” The university answered that the hiring for that post had been handled by an outside headhunting company, which was a common practice at Columbia.

Assume the outside company did engage in discriminatory practices. Does the fact that it’s an independent enterprise cleanse Columbia University of responsibility? Or is the university equally responsible? Or is it actually worse that they’re hiding behind an outside firm? Justify your answer.

2. An administrator at the university once asked Raghavendra, “Do you often get hassled at airport security?” The suggestion, according to Raghavendra, was that he looked like a potential terrorist. The administrator didn’t deny the comment but affirmed that the idea that it was racist was “bizarre” and “silly beyond belief.”

< How could you make the case that this is an example, of individual, isolated, unintentional discrimination?

< Who gets to decide whether a comment is racist? How is the decision made? Does or doesn’t this conflict resemble the one you see on MTV videos where blacks openly refer to each other with a specific term that would earn a white person who used the word a lifetime ban from the channel?

3. Raghavendra argues that he didn’t get his own office while several white workers in lower posts did have their own office as well as a separate mailbox. The university responded that office and mailbox space is distributed by seniority: the lower-level white workers who had their own office had worked there longer.

Seniority is viewed by most as a generally fair way of distributing offices. It’s also fair, according to common opinion, to divide them up in terms of rank. Would it be right or wrong, however, for Columbia to simply say that either of the two systems will be used interchangeably, but the choice will be made in terms of minorities: whichever system allots the best offices to minorities will be implemented? Justify your answer.

4. Raghavendra originally took his case to Susan Rieger, head of the Office of Equal Opportunity and Affirmative Action. After three months he withdrew it, however, claiming that they played games with him and never really investigated the charges. The university responded that he “failed to utilize internal administrative remedies provided by Columbia.”

Raghavendra is claiming that Columbia discriminates against him. As an employee of Columbia, does he have any ethical responsibility to try to work out the issue inside that organization? If so, what is the responsibility? As a member of society, does he have an obligation to take his claim outside the university? If so, what is the responsibility?

5. Raghavendra sued for punitive damages. That’s money as punishment for discrimination, and it’s an amount beyond that which may have been lost in wages and benefits because of mistreatment. More, as part of any settlement, Raghavendra wanted to be awarded a job assignment as manager of finance and accounting at Columbia. He says he’d like to stay at the university after the suit is settled. Does this decision affect the way you see his case against Columbia? Why or why not? Should it? Why or why not?

6. Raghavendra notes that there are no African Americans in higher-level positions in his office. There is a Pakistani who has a higher title, but Raghavendra points out “he’s not really that dark-skinned.”

Within the context of the ethics of discrimination, what does it mean to be a victim? What types of victimhood are there? Is there any reason to ask here whether Raghavendra might be one of these kinds of victims? If so, what is it? If not, why not?

7. What makes the case especially difficult for Rieger, the Columbia point person on all this, is that she’s trying to balance discrimination claims while fending off a lawsuit herself. Her post had been occupied—on a provisional basis—by Zenobia White-Farrell, a black woman. Columbia offered to make the job permanent with a salary of $80,000. White-Farrell responded that she’d accept but only on the condition that the salary was upped to $100,000. Columbia offered only $83,000. White-Farrell resigned. Soon after, Columbia hired Rieger at a salary of $107,000. White-Farrell sued, alleging discrimination.

< What factors could possibly have justified offering Rieger so much more than White-Farrell?

< How could you describe this case as an example of a glass ceiling for minority women?

< The Columbia nondiscrimination code protects both gender minorities (women) and racial minorities. Is White-Farrell more protected than Rieger because she fits two categories and Rieger only one? Does the answer affect the ethical strength of White-Farrell’s case? Justify your answer.

< Assume that, strictly in terms of merit, Rieger deserved a higher salary than White-Farrell for the same job. Rieger had, say, more years of experience and a higher degree. Could you make a utilitarian argument that because the ethically right thing to do is just that which serves the general society’s welfare, White-Farrell should have been offered $100,000, even though, again, strictly in terms of merit, she didn’t deserve that much?

CHAPTER 10 THE TENSE OFFICE: DISCRIMINATION, VICTIMIZATION, AND AFFIRMATIVE ACTION 261

8. Columbia University is an Affirmative Action institution. They aren’t satisfied with gender and racial neutrality; it’s the institution’s policy to promote and to some extent favor minority candidates for jobs.

< Can you make the case that, with respect to the particular job of overseeing all hiring at the university, there’s a good practical reason—which is also ethically acceptable—to seek a white male to direct the office? What is the case?

< Can you make the case that with respect to this particular job, there’s a good practical reason—which is also ethically acceptable—to seek a multiple minority (a gender plus racial minority or some similar combination) to direct and oversee hiring? What is the case?

9. The name of the office Susan Rieger leads is the Office of Equal Opportunity and Affirmative Action. What is “Equal Opportunity?” What is “Affirmative Action?” Does the title of this office make sense? If so, how? If not, why not?

6.4 Google Celebrates Diversity…and Profit

Source: Photo courtesy of dichohecho, http://www.flickr.com/photos/dichohecho/2545363497.

This statement comes from Google CEO Eric Schmidt on the corporate web page titled “Google Celebrates Diversity”: “Our products and tools serve an audience that is globally and culturally diverse—so it’s a strategic advantage that our teams not only encompass the world’s best talent but also reflect the rich diversity of our customers, users, and publishers. It is imperative that we hire people with disparate perspectives and ideas, and from a broad range of cultures and backgrounds. This philosophy won’t just ensure our access to the most gifted employees; it will also lead to better products and create more engaged and interesting teams.”[40]

This is a very carefully worded paragraph, and beneath its motivational tone there are firm statements about diversity in the Google workplace. They include the following:

< Google carefully avoids mentioning race, gender, and similar requirements for any particular position. The company doesn’t get involved in discussions about how many Catholic females over fifty years old and with a disability work there. Like most contemporary organizations, Google avoids strict quota systems.

< Google will seek to hire “the world’s best talent.”

< Google, apart from hiring the best raw talent, will seek employees reflecting “the rich diversity of our customers.”

There are also clear justifications for the diversity side of the hiring strategy. Google will take action to contract a rainbow of workers because

< diversity in hiring will help Google connect with its diverse consumer base,

< diversity in hiring will ensure Google has access to all gifted employees,

< diversity in hiring will help Google produce better products,

< diversity in hiring will help Google create more engaged and interesting teams.

Concretely, what is Google doing to diversify the people forming its company? Besides directly hiring a diverse workforce, the company offers a number of scholarships and internships aimed at those historically underrep- resented in the technology industry.[41]

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Q U E S T I O N S

1. In a nutshell, the commonly cited arguments in favor of affirmative action include the following:

< It creates fairness and equal opportunity within organizations.

< It benefits third parties: society as a whole will be more harmonious as discrimination recedes. < It reduces tensions in an organization.

< It benefits organizations by helping them reach their goals.

< It is compensation for past wrongs.

Which of these arguments appear to stand behind affirmative action at Google? Explain. Are any of the other justifications applicable even though they may not be the reason Google seeks diverse talent?

2. In sweeping terms there are two types of arguments in favor of affirmative action. First, it serves a broad social good by integrating society. Second, companies employing affirmative action do better in the marketplace than those that don’t. If you had to choose one of these as a better and more persuasive argument for affirmative action, which would you choose? Why?

3. At some publicly funded universities, scholarships are, in essence, set aside for minorities. Google privately funds scholarships that are, in essence, set aside for minorities. Taxpayers, in other words, fund one affirmative action endeavor and private investors the other. Now, is one endeavor ethically superior to the other? Why or why not?

4. In a nutshell, the basic arguments against affirmative action include the following:

< It is essentially discrimination, and therefore it reinforces what it combats.

< The best way to eliminate discrimination is to let equal opportunity law, markets, and time do their work.

< It is unfair to minorities who are treated as tokens.

< Forcing organizations to evaluate talent in ways outside of merit diminishes their competitiveness.

< It creates resentment and tensions in an organization.

< It doesn’t compensate past wrongs (because those benefitting and suffering today aren’t those who suffered and benefitted in the past).

Looking at this list, how do you suppose Google CEO Eric Schmidt might argue against each item?

5. With an eye on these arguments against affirmative action, can you make the case that Google’s efforts are ethically reproachable?

6. What does the veil of ignorance test for discrimination? Put yourself under the veil of ignorance. Now, do you believe Google’s hiring policies are ethically good or bad? Why?

6.5 Susan Rieger in More Trouble: Madonna Constantine

Source: Photo courtesy of BY-YOUR-⌘, http://www.flickr.com/photos/aparejador/2482604806.

Madonna Constantine is a professor of psychology and education specializing in race studies and prejudice. Growing up as one of five children in a lower-middle-class family in Lafayette, Louisiana, she’d benefitted from parents who never finished college and vowed she would: they saved and scrimped together enough money to get her started at the upper level. Constantine took it from there. She began her remarkable journey at Xavi- er in New Orleans. Next, she went to the University of Memphis, and then to the University of Texas, and Temple University, and finally to the Ivy League’s prestigious Columbia, where she earned tenure with more than thirty articles authored and published: “Most people may go up for tenure with 15 or 20 articles,” she said. “I figured as a black woman, I needed at least double that.”[42]

CHAPTER 10 THE TENSE OFFICE: DISCRIMINATION, VICTIMIZATION, AND AFFIRMATIVE ACTION 263

As it turned out, the numbers weren’t the whole truth. Constantine had plagiarized significant amounts of her writings from students and another professor. Upon discovering the truth, Columbia fired her. Constantine re- sponded, “I am left to wonder whether a white faculty member would have been treated in such a publicly disrespectful and disparaging manner.”[43]

Next, she sued Columbia for racial discrimination.

Columbia University is having a rough time: Randy Raghavendra, Zenobia White-Farrell, and Madonna Con- stantine are all suing the traditionally very white institution for color discrimination.

Q U E S T I O N S

1. In your own words, and in general terms since there isn’t space here to provide every detail of every case, what would it mean to accuse these people of being victims? What’s the difference between strong and weak victimhood?

2. With the facts provided, create a picture of Madonna Constantine as a victim. What kind of victim would she be? How could that conclusion be supported?

3. Sketch an argument that society as a whole is better off with occasional cases of discrimination than it is with occasional cases of victimhood.

4. Use a utilitarian argument to make the case that even if Columbia’s affirmative action policies are fostering cases of victimization, they should maintain those policies.

264 THE BUSINESS ETHICS WORKSHOP

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ENDNOTES

Michael Silver, “Race Factors into Evaluation of Gerhart,” Yahoo! Sports, April 20, 2011, accessed May 31, 2011, http://sports.yahoo.com/nfl/ news?slug=ms-gerhartstereotype042010.

John Mitchell, “White Running Back’s Draft Status Won’t Be Hamstrung by Race,” TheGrio.com, April 22, 2010, accessed May 31, 2011, http://www.thegrio.com/ opinion/white-running-backs-draft-status-wont-be-hamstrung-by-race.php.

“About theGrio,” TheGrio.com, accessed May 31, 2011, http://www.thegrio.com/ about.

“About theGrio,” TheGrio.com, accessed May 31, 2011, http://www.thegrio.com/ about.

“City Room,” New York Times, NY/Region, March 31, 2009, accessed May 31, 2011, http://cityroom.blogs.nytimes.com/2009/03/31/racial-bias-seen-in-hiring-of-waiters.

U.S. Census, “Table PINC-03. Educational Attainment—People 25 Years Old and Over, by Total Money Earnings in 2005, Work Experience in 2005, Age, Race, Hispanic Ori- gin and Sex,” in Current Population Survey (2006).

George E. Curry, “Race, Gender and Corporate America,” District Chronicles, April 24, 2005, accessed May 31, 2011, http://www.georgecurry.com/columns/ race-gender-and-corporate-america.

Rebecca Leung, “The Look of Abercrombie & Fitch,” 60 Minutes, November 24, 2004, accessed May 31, 2011, http://www.cbsnews.com/stories/2003/12/05/60minutes/ main587099.shtml.

Don Banks, “Hurdles to History: From Size, Stereotypes, System, Chang Fights Skep- tics,” Inside the NFL (blog), Sports Illustrated, April 15, 2005, accessed May 31, 2011, http://sportsillustrated.cnn.com/2005/writers/don_banks/04/15/chang/index.html.

Civil Rights Act of 1964 (Pub. L. 88-352, 78 Stat. 241, enacted July 2, 1964).

Rebecca Leung, “The Look of Abercrombie & Fitch,” 60 Minutes, November 24, 2004, accessed May 31, 2011, http://www.cbsnews.com/stories/2003/12/05/60minutes/ main587099.shtml.

Rebecca Leung, “The Look of Abercrombie & Fitch,” 60 Minutes, November 24, 2004, accessed May 31, 2011, http://www.cbsnews.com/stories/2003/12/05/60minutes/ main587099.shtml.

Silicon Valley Blogger, “Traditional Jobs for Men and Women and the Gender Divide,” The Digerati Life (blog), May 29, 2007, accessed May 27, 2011, http://www.thedigeratilife.com/blog/index.php/2007/05/29/ traditional-jobs-for-men-and-women-the-gender-divide.

Claire Cain Miller, “Out of the Loop in Silicon Valley,” New York Times, April 17, 2010, accessed May 31, 2011, http://www.nytimes.com/2010/04/18/technology/ 18women.html?pagewanted=1.

Manuel Velasquez, Manual Business Ethics: Concepts and Cases (New Jersey: Prentice Hall, 2002), 306.

Silicon Valley Blogger, “Traditional Jobs for Men and Women and the Gender Divide,” The Digerati Life (blog), May 29, 2007, accessed May 27, 2011, http://www.thedigeratilife.com/blog/index.php/2007/05/29/ traditional-jobs-for-men-and-women-the-gender-divide.

“Table PINC-03. Educational Attainment—People 25 Years Old and Over, by Total Money Earnings in 2005, Work Experience in 2005, Age, Race, Hispanic Origin and Sex,” Current Population Survey (CPS), accessed May 31, 2011, http://pubdb3.census.gov/macro/032006/perinc/new03_000.htm.

Jeanne Sahadi, “39 Jobs Where Women Make More than Men,” CNNMoney.com, February 28, 2006, accessed May 31, 2011, http://money.cnn.com/2006/02/28/ commentary/everyday/sahadi_paytable/index.htm.

Rebecca Traister, “The Truth about Carly,” Salon, October 19, 2006, accessed May 31, 2011, http://www.salon.com/life/feature/2006/10/19/carly_fiorina.

Rebecca Traister, “The Truth about Carly,” Salon, October 19, 2006, accessed May 31, 2011, http://www.salon.com/life/feature/2006/10/19/carly_fiorina.

Rebecca Traister, “The Truth about Carly,” Salon, October 19, 2006, accessed May 31, 2011, http://www.salon.com/life/feature/2006/10/19/carly_fiorina.

Rebecca Traister, “The Truth about Carly,” Salon, October 19, 2006, accessed May 31, 2011, http://www.salon.com/life/feature/2006/10/19/carly_fiorina.

“Ex-Google Worker’s Case Goes to High Court,” San Jose Mercury News (CA), May 24, 2010.

Rebecca Traister, “The Truth about Carly,” Salon, October 19, 2006, accessed May 31, 2011, http://www.salon.com/life/feature/2006/10/19/carly_fiorina.

Rebecca Traister, “The Truth about Carly,” Salon, October 19, 2006, accessed May 31, 2011, http://www.salon.com/life/feature/2006/10/19/carly_fiorina.

UT alum, August 24, 2005 (9:09 a.m.), “Falsely Accused of Racist Slur,” ExpertLaw For- um, accessed May 31, 2011, http://www.expertlaw.com/forums/ showthread.php?t=2887.

Rebecca Traister, “The Truth about Carly,” Salon, October 19, 2006, accessed May 31, 2011, http://www.salon.com/life/feature/2006/10/19/carly_fiorina.

Gerogerigegege, February 26, 2010 (10:27), “Does Racism/Sexism/Homophobia Exist in Any Meaningful Way in Modern Britain?,” DrownedinSound.com, accessed May 31, 2011, http://drownedinsound.com/community/boards/social/4248929.

Brian Cabell, “Whites-only Alabama Scholarship Program Raising Eyebrows,” CNN, October 30, 1999, accessed May 31, 2011, http://www.cnn.com/US/9910/30/ white.scholarships/index.html.

June Kronholz, “Double Reverse: Scholarship Program for whites Becomes a Test of Preferences,” The Center for Individual Rights, Wall Street Journal, December 23, 1997, accessed May 31, 2011, http://www.cir-usa.org/articles/103.html.

June Kronholz, “Double Reverse: Scholarship Program for whites Becomes a Test of Preferences,” The Center for Individual Rights, Wall Street Journal, December 23, 1997, accessed May 31, 2011, http://www.cir-usa.org/articles/103.html.

June Kronholz, “Double Reverse: Scholarship Program for whites Becomes a Test of Preferences,” The Center for Individual Rights, Wall Street Journal, December 23, 1997, accessed May 31, 2011, http://www.cir-usa.org/articles/103.html.

June Kronholz, “Double Reverse: Scholarship Program for whites Becomes a Test of Preferences,” The Center for Individual Rights, Wall Street Journal, December 23, 1997, accessed May 31, 2011, http://www.cir-usa.org/articles/103.html.

June Kronholz, “Double Reverse: Scholarship Program for whites Becomes a Test of Preferences,” The Center for Individual Rights, Wall Street Journal, December 23, 1997, accessed May 31, 2011, http://www.cir-usa.org/articles/103.html.

Mike Bianchi, “Panthers Gm Proves Paterno Barb Wrong,” Orlando Sentinel, January 31, 2004, accessed May 31, 2011, http://articles.orlandosentinel.com/2004-01-31/ sports/0401310276_1_sports-writer-silly-stuff-recruiting-visits.

“Office of Equal Opportunity and Affirmative Action,” Columbia University, accessed May 31, 2011, http://www.columbia.edu/cu/vpaa/eoaa.

“Transvestite Dies At Voodoo Ceremony,” OddCulture, accessed May 31, 2011, http://oddculture.com/culture/transvestite-dies-at-voodoo-ceremony.

“Transvestite Dies At Voodoo Ceremony,” OddCulture, accessed May 31, 2011, http://oddculture.com/culture/transvestite-dies-at-voodoo-ceremony.

“NRI Sues Columbia University for Racism, Times of India, November 22, 2003, ac- cessed May 31, 2011, http://businessethicsworkshop.com/Chapter_10/ susan_rieger_in_trouble.html.

“Diversity@Google: A place to be you,” Google, accessed May 31, 2011, http://www.google.com/corporate/diversity/index.html.

“Diversity and students,” Google, accessed May 31, 2011, http://www.google.com/ diversity/students.html.

Elissa Gootman, “Noose Case Puts Focus on a Scholar of Race,” New York Times, Octo- ber 12, 2007, accessed May 31, 2011, http://www.nytimes.com/2007/10/12/ education/12columbia.html?_r=1&pagewanted=all.

Karen W. Arenson and Elissa Gootman, “Columbia Cites Plagiarism by a Professor,” New York Times, February 21, 2008, accessed May 31, 2011, http://www.nytimes.com/ 2008/02/21/education/21prof.html.

CHAPTER 10 THE TENSE OFFICE: DISCRIMINATION, VICTIMIZATION, AND AFFIRMATIVE ACTION 265

266 THE BUSINESS ETHICS WORKSHOP

C H A P T E R 1 1 The Aroused Office: Sex and Drugs at Work CHAPTER OVERVIEW Chapter 11 examines the ethics of sex in the marketing world, and discusses issues raised by romance among work-

mates. Drug use is considered from the side of prevention and in terms of performance enhancement.

1. IS THERE ANYTHING SPECIAL ABOUT SEX?

L E A R N I N G O B J E C T I V E S

1. Consider the ethics of using sex to promote products and services in the marketplace. 2. Investigate the ethics of sleeping with the boss in exchange for professional advancement.

1.1 Sex in the Office That subtitle got your attention. It gets everyone’s attention, which explains why there’s so much of it in the business world. Marketing efforts lead the way because people tend to pay attention to the TV when scantily clad people appear. More broadly, sex happens—either explicitly or just as a sugges- tion—almost everywhere business does. It’s exploited in the commercials, showing up on the office computer screens, joked about in the bathroom, discussed in the organizational code of conduct, and going on underneath cubicle desks. The economic world is charged with it. Some of the more intense questions about the ethics of sex in the workplace include:

< What’s the ethics of using sex to sell products? < What’s the ethics of using sex to sell yourself? < What’s the ethics of looking for sex at work?

1.2 Sex Sells The Russian anchorwoman Svetlana Pesotskaya caused a stir in international media circles when she started doing her reporting topless. Her news program—utterly conventional except for the clothing is- sue—is called The Naked Truth. One of the broadcast’s more entertaining aspects is watching male guests as they’re being interviewed in the studio heroically trying to keep their eyes above her neckline.

Regardless of the reason viewers tune in for sex-charged information, they certainly do tune in. That fact is not lost on a station closer to home, the CBS affiliate in Cleveland, Ohio: WOIO. In a seg- ment heavily and provocatively advertised by the station beforehand, their news anchor Sharon Reed stripped on air before dashing off to join a throng of temporary nudists participating in an installation by photographer Spencer Tunick, who’s gained international fame by convincing multitudes of men and women to voluntarily pose naked for his fleshy panorama shots.

The reviews of Reed’s participative report were mixed. Don Shelby, an anchor at the CBS affiliate in St. Paul and Minneapolis said, “This threatens to turn us [news broadcasters] into something of a cartoon, if we weren’t already.”[1] Going further, the chairman of the Radio-Television News Directors Association in Washington, DC, complained, “I think the general reaction in the industry has been one of surprise and disgust. I don’t see how this can engender confidence in the quality of news we think we are doing, and it manages to justify the harsh criticism that we often face in our industry.”[2]

product sincerity

Openness and transparency about what’s being offered to consumers.

On the other side, neither WOIO nor Sharon Reed backed down. Station executives insisted that the core story—Tunick’s photography event—was legitimate local news, and the anchor’s participation was analogous to conveying the reality of a flash flood by reporting underneath an umbrella from be- side a rushing stream. As for Reed personally, she made no apologies for using her assets to increase ratings for her station and, simultaneously, her own profile in her profession’s arena. “I’m in it to win,” she said. “When did that become a crime?”

That last quote came from the New York Times. The newspaper took advantage of the situation to run its own nude picture of Reed.[3]

1.3 Product Sincerity, Prurience, and Objectification Ethical issues visible in the Sharon Reed broadcast include product sincerity, prurience, and objectifica- tion. Product sincerity measures openness and transparency about what’s being sold. In the case of Reed’s report, there are two front-running possibilities, two clearly distinct products being offered for viewers’ consumption:

1. A news story about a flamboyant picture taker’s visit to Cleveland 2. A video of a woman stripping

Here’s one way to sharpen the question about what’s really going on: Had federal broadcasting rules not allowed the unclothed images, would WOIO still have covered the event, would the station have broadcast a story more or less like the one it did but with the reporter clothed? For its part, the station insists it would have. Further, its basic argument for broadcasting the nude version is clearly reason- able. Both WOIO and Reed remind critics that participating in an event is an excellent way to under- stand and convey it. That’s why sports reporters pick up bats and try to hit pitched baseballs, and fash- ion reporters dress in the season’s hot shoes and exhibit them on camera, and war reporters visit the front lines. The fact, consequently, that Reed got involved with her story fits perfectly with the claim that she’s doing the best and most professional job possible of portraying what happened. Still, it’s also probably true that she could’ve uncovered herself without beaming the images across the airwaves. More, the way she took everything off wasn’t exactly discreet. In a moment reminding some viewers of the artistic and historical significance of the disrobed body, and others of a bar with poles, Reed stared intently at the camera as she slowly unsnapped her bra and slipped out of her final clothing layer.

Does it matter? Whether the station was trying to win over viewers with a news story that happened to include nudity, or with nudity that happened to include some news, is there a responsibil- ity for the people at WOIO to be sincere about their strategy? There are solid reasons for affirming that the responsibility is limited.

< Viewers aren’t morons; they know how to change channels. If they see something they don’t like on WOIO, they’re free to try another offering. As long as that’s true, as long as viewers can see for themselves what’s being offered and therefore make their own fully informed decisions, what the broadcaster is claiming diminishes in importance.

< The fact that a product being offered for consumption isn’t what it claims to be is a perfectly understood part of our economic and business world. It goes on all the time and everywhere. Teenagers buying whipped cream chargers (whippets) don’t come to the grocery store because they expect to have pie that night at dinner. The cashier knows why they’re buying the canister, the store owner does too and the manufacturer. Everyone knows, which means there’s no attempt to deceive. It’s true that the canister packaging insists that the product is for use with whipped cream, but that’s not really a lie, just a formality.

Product sincerity, in conclusion, is relative. When people can see for themselves what’s being offered, or everyone knows what’s going on, a lie isn’t really a lie. Or at least the case can be made that it’s not.

Going back to Reed’s story, this much is clear: exactly how her report would be presented was well publicized. Through a massive promotional campaign leading up to the event, the station made sure everyone knew beforehand what was coming. Even accepting the informed consent of the viewers, however, a business ethics that sticks with firm duties—one that orients right and wrong with basic rules about always telling the whole truth—may disapprove of what happened on WOIO. This is the position anchorman Don Shelby took when asked about the infamous report. As Shelby put it, “This threatens to turn us into something of a cartoon.” He meant that Reed’s news broadcast was simply and factually insincere: it claimed to convey important events about the real world, but really offered viewers a piece of ratings-grubbing, skin-flashing entertainment.

In the end, the two guiding questions about product sincerity as they relate to Sharon Reed remain open: Was she telling the truth when asserting that hers was a legitimate news story that rightfully in- cluded sex (as opposed to a chance to use sex to boost ratings with the help of a dubious news event)? And does it matter whether she was telling the truth?

268 THE BUSINESS ETHICS WORKSHOP

prurience

An immoderate and unwholesome interest or desire, especially one that’s related to sex.

objectification

The reduction of a human being—his or her nobility and dignity—to nothing more than the object, which is his or her body.

Prurience is an immoderate and unwholesome interest or desire, especially related to sex. On this front, the ethical question is simple: is there anything wrong with sitting in front of your TV and watching someone take their clothes off? Anyone who’s watched the Olympics has noticed that beach volleyball gets a little more coverage than the purely athletic competition seems to merit, and some viewers seem more interested in watching the male swimmers stretch on their blocks and prepare to fire into the water than they do in following the actual swimming. People like to look at nice bodies, but where does checking someone out cross into the objectionably unwholesome?

This question is especially well adapted to a community or a cultural ethics, which is a sense of right and wrong that’s not determined by preset rules or viewers’ free choices so much as community standards. What’s right or wrong, from this perspective, is set by a society’s customs and expectations. Swinging this viewpoint around to Sharon Reed’s report, one important aspect is that it was carefully set to air after 10 p.m. when, presumably, children would be tucked away in bed. The station didn’t have any choice in the matter (at least not if it wanted to keep its broadcasting license) because nudity simply isn’t allowed before that time. In the United States, these standards are usually set by the Federal Communications Commission (FCC), which is the national government’s regulatory commission for what can and can’t be shown on open airways. The members of that agency are chosen, ultimately, by elected officials, and those officials, presumably, are in touch with what the public feels is appropriate. The argument can be made here that because a democratically elected government drew the line between the acceptable and the unwholesome at 10 p.m., the line is there. Period.

Refining the point, certain depictions of nudity, degrees of it, and things that happen to go on while people aren’t wearing clothes are limited in similar ways by the FCC, and in all these areas, lines are getting drawn between healthy and immoderate viewer interest. The definition of what counts as prurience, finally, may find an ethical foundation on a community’s verdict about whether it’s happening.

Objectification is dehumanization; it drains away the person inside a body. If you set the report- er Sharon Reed next to a blow-up doll of Sharon Reed, objectification is what happens when you go from the first to the second. The charge or accusation of objectification is that by volunteering to take her clothes off on TV, Reed is violating a moral duty to herself, the duty to protect her own dignity and humanity. As an experienced TV reporter, the professional skills Reed had developed involve the soph- isticated ability to investigate, understand, and report on current affairs. There’s a nobility in those cul- tivated talents, and Reed has a responsibility to herself to promote them. When she takes her clothes off, though, everyone loses sight of what truly makes her an accomplished person. In the same way, those that participate in the nude spectacle—the TV station, the viewers—are violating a duty to her: by sending Reed out there to be ogled, or by doing the ogling, they’re violating their responsibility to see her as an accomplished reporter, and not an empty piece of eye candy. If that’s right, finally, then Reed shouldn’t have taken her clothes off, and viewers shouldn’t have watched if she did.

One strong argument against this duty-based reasoning is that respect for others can be condes- cending and patronizing. Who are we to tell Reed when she is and isn’t an object? It’s far better to let everyone make their own decisions and respect them for doing so. The case could even be made that Reed’s highest dignity as a human lies precisely in her ability to use and display her body as she chooses. If stripping moves Reed toward accomplishments that will make her happy—if it helps her achieve the success as in her profession—then she shouldn’t be obstructed. From this perspective, telling Reed to keep her clothes on isn’t a respectable ethical recommendation; it’s an insulting attack on her right to go out into the world and find what she wants. Listening to her, it sounds like she may have had this argument in mind when she asserted, “I’m in it to win. When did that become a crime?”

There’s at least one further route to follow in defense of Reed’s disrobing. In the twenty-nine- second advertising segments promoting her presentation, art is heavily featured. It’s steamy art, true, but nonetheless the kind of thing we’re used to seeing in museums. The first shot is a bronze sculpture of three female nudes knotted in a passionate embrace. Next comes a painting on the same subject. Both these shots apparently come from museums. Reed appears in the following scene; it’s a head shot balanced by a partially visible statue of a male nude just to her right. The statue’s visible section is its waist area. Similar juxtapositions lead to a climactic (and blurry) tease of men and women gathering without their clothes to pose for Spencer Tunick’s artistic photos.

Video Clip

Body of Art

Please view this video at http://businessethicsworkshop.com/Chapter_11/body_of_art.html.

Art, the message is, includes bodies. Far from presenting a cheap thrill, Reed is participating in the il- lustrious history of high and noble aesthetic representation. Everyone will have to decide for

CHAPTER 11 THE AROUSED OFFICE: SEX AND DRUGS AT WORK 269

deny the premise

A kind of rational argument that questions another’s opinion by insisting that their basic assumptions are wrong.

themselves whether Spencer Tunick’s panorama shots of naked herds deserve to be called art. But the fact that they could be opens the way to claiming that those stripping down for him aren’t being re- duced to pinups; they’re being elevated to one of the higher human callings, which is the thoughtful and provocative depiction of what it means to be human in all its dimensions.

Conclusion. Sex certainly sells. It’s also certain that sexual selling raises ethical questions: is it in- sincere, unwholesome, or exploitive of the person doing the selling?

1.4 Getting on Top to Get Ahead Some people who are in it to win consider going further than taking their clothes off. “Based on the questions I receive from readers,” writes Huffington Post columnist Joy Chen, “there seems to be a sub- stantial segment of charming, ambitious female blog readers among you who wonder: ‘Should I have sex with my boss to get ahead in my career?’ Perhaps there is an equally large number of good-looking male readers among you who are in the same predicament, but too shy to ask.”[4] No, she answers, and runs through a list of practical reasons why the strategy is flawed.

Regardless of whether sleeping with the boss will help you up the career ladder, the ethics of the strategy divide along a number of lines. The arguments against even trying to convert sex into a pro- motion start with appeals to honesty and fairness. Granting special favors to a superior—no matter what they may be—almost inevitably requires lying if they’re to be repaid with a promotion or pay raise or some other professional compensation since most organizations require that some kind of internal evaluation justify the selection of one employee instead of others for a move up. The practical reality is that people involved in this kind of relationship are probably going to end up misleading others about what’s really going on. And even if no one asks, the equally fundamental value of fairness gets breached when promotions that supposedly are based on specific job-performance skills end up being distrib- uted in accordance with different motives.

Another, though related, argument against what Chen calls the “sleep-up strategy” emerges from utilitarian theory. Starting with the premise that ethical good is just whatever heightens a society’s gen- eral welfare and happiness, it seems as though a world in which everyone is uniformly getting ahead by working hard will be less rancorous and angry than a world where some people are getting ahead through hard work, while others are flying under the radar, suddenly appearing in higher-level posts for reasons that others don’t understand or that don’t conform with expectations. Resentment can grow quickly, as well as charges of capriciousness and unfairness. If the boss happens to be a hetero- sexual woman, for example, with a taste for sinewy, dark men, and if promotions are doled out as part of pillow talk, then large numbers of workers aren’t even going to have the opportunity to ask just how far they’ll go to get that salary raise. It’s true, of course, that some individuals will benefit when sleeping up occurs. But for the general welfare to be favored, their pleasures are going to need to outweigh quite a bit of workplace frustration.

The third strong ethical argument against sleeping with the boss to get ahead relates to the earlier consideration of disrobing for the camera. If you can make an argument that a news reporter shouldn’t take off clothes to win more viewers because it’s dehumanizing and objectifying, the same reasoning may be transferred with even greater force to taking off the clothes and not stopping there. In both cases, individuals are drained of their professionalism. Within the business world, they sacrifice the judgment and skills that make them what they are as qualified supervisors and laboring employees. When the particular dignity that belongs to those who develop real skills in the economic world is stripped away, what’s left is nothing more than selfish individuals placating immediate and base desires.

One response to this last argument is to deny the premise, which means to dispute the basic as- sumptions. In this case, denying the premise could mean asserting that skills in the business world aren’t limited to the kinds of things that show up on paper: the number of tasks you’re able to complete each hour, the scores you receive in customer satisfaction surveys, and so on. Business is much broader than that. Like money, it’s everywhere, as broad as life itself. If this is the starting point, it follows that the notion of business skills must be taken to include all that.

Next, if that’s what business skills are, if they’re everything you can bring to bear on the economic world, then sex is going to factor into the mix. It’s going to be something employable just like any other ability. Some people are born with great mathematical minds, and they use the quality to get ahead by finding good engineering jobs guaranteeing high pay. Others are born with tremendous athletic skill. They may use that ability to win a college scholarship and so receive an education that the next per- son—who’s the same in every other way—won’t be able to access. There are people who have a natural talent for selling and leverage that; others put a sharp visual sense of balance and harmony to use in an interior design company. Sculptors and carpenters turn capable hands into money. If, finally, there’s someone out there with great sex appeal and the ability to use it, why shouldn’t they? Theirs is a talent just like everyone else’s.

270 THE BUSINESS ETHICS WORKSHOP

laissez-faire

French for “leave to do.” In the economic world it denotes an unobstructed marketplace where businesses compete with minimal regulation, oversight, and limitation.

Filling this out by reference to ethical theory, there are two kinds of foundations that may be laid underneath the assertion that using bedroom skills to get ahead isn’t any different from dressing for success or staying late at the office. The first is obvious: fairness. If one person can use their skills, then others should be able to use theirs. One response to this argument is that any talent may be used as long as it’s directly relevant to professional responsibilities. Letting people use their erotic skills is only fair, the argument goes, if you happen to be in Amsterdam, a few counties in Nevada, or some other place where prostitution is legal.

The second theoretical foundation for an ethics of sleeping up is the privileging of individual rights and human freedom as the highest values in the workplace. If freedom guides ethics, then constraining the talents that may be used to succeed becomes immoral because it’s a constraint on individual liberty. Freedom, the argument continues, is one of those things you can’t limit: either you let people make their own decisions about getting ahead or you don’t.

1.5 The Ethics of Individual Freedom and the Wide-Open Market Economy The employment of an ethics of freedom to justify the bedroom strategy for career advancement illus- trates one reason why proponents of freedom maximization in the economic world frequently set their view of individual rights in tandem with the ideal of an unobstructed market economy.

An unobstructed marketplace is sometimes called a laissez-faire economy (laissez-faire is French for “leave to do”), and it’s one where individuals and organizations compete against each other with minimal regulation, oversight, and limitation. The purchase of trash bags is a decent example. If you buy Glad bags and find they rip when you’re taking the trash out and so leave your kitchen floor stained with coffee grounds, it doesn’t take much effort to go to the store and buy a different brand. On the other hand, trash collection is much less competitive. Especially in those cities where the local gov- ernment runs the trash trucks, you’re going to find it difficult to change companies if you don’t like the service you’re getting. Now, with respect to the trash bag company, if all the design specialists got their jobs by getting it on with the CEO, no one will be surprised to discover that they don’t know too much about making good bags. This kind of company, therefore, one where professional excellence isn’t re- warded, is probably also one that’ll produce leaking bags and soon go out of business. The marketplace, consequently, does some of the work to professionalize the office that a freedom-based ethics can’t do. Of course, if the marketplace is obstructed—if consumers can’t easily switch from one provider to an- other, as in the trash collection case—then it’s less likely that experts in sleeping up will be weeded out.

A stronger point can be made. Practices many consider inappropriate, undignified, or reprehens- ible—like sleeping with the boss to get ahead—may surrender to economic reality more quickly and completely than they do to purely ethical arguments. It’s possible that the best way (the most efficient, practical, and certain) to cure behaviors many label egregious—everything from under-the-table bribes to racial discrimination—is to simply let market forces of competition do their job.

K E Y T A K E A W A Y S

< Using sexual images and suggestions for economic reasons raises ethical issues of sincerity, prurience, and objectification.

< Sleeping with the boss for career advancement opens issues concerning the intrinsic nobility of the individual in a business setting and the limits of acceptable strategies for advancement.

< The possibility of sleeping with the boss to advance professionally illustrates one reason rights theorists in the economic world tend to favor market-driven economies.

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sexual harassment

Unwelcome sexual advances or conduct that creates a hostile work environment.

R E V I E W Q U E S T I O N S

1. What—if anything—is wrong with taking off your clothes to earn some money?

2. Is there an ethical difference between stripping for Playboy or Playgirl magazine and Reed’s disrobing? If so, what is it? If not, why are they ethically the same? Use the concepts of prurience and objectification to answer.

3. Your boss wants to sleep with you, and it’s clear that visiting a hotel will help your career. What are two arguments against? What’s an argument in favor?

4. Some ethical theorists believe individual freedom and the pursuit of happiness are the highest ethical values. Why might this kind of theorist also favor wide-open market economies with competition among companies?

2. BAD SEX: HARASSMENT

L E A R N I N G O B J E C T I V E

1. Discuss sexual harassment in its principal contexts.

2.1 The Boss Wants to Sleep with You The flip side of you deciding to sleep with the boss to get ahead is the boss deciding to sleep with you. In ethical terms, however, and in legal ones also, this situation isn’t just a reversed copy of the previous. When the sleep-up strategy begins with some guy or gal having a few drinks and deciding to make a run through the promotion shortcut, the boss can decline. There’ll be some awkward talk and red faces, but a week later the whole thing will probably have evaporated. What happens, though, when the per- son initiating the deal isn’t so much an opportunist as a predator, and when it’s not so much about making a quick and steamy bargain as it is a continuously leveled demand?

Sexual harassment with respect to the law is defined this way by the US Equal Employment Op- portunity Commission (EEOC): “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or re- jection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably inter- feres with an individual’s work performance, or creates an intimidating, hostile or offensive work en- vironment.”[5]

The clichéd image of sexual harassment—which may have gotten to be the cliché by being the most accurate and common—is of a middle-age man hiring and hitting on the nubile account execut- ive. She gets the message pretty quickly about exactly why she was selected for the job, and what she’s going to need to do to keep it or advance upward. Whether that’s the most typical scenario or not, both legal and ethical considerations of the issue account for varied exploitation scenarios: harassment can work against diverse people in multiple ways. According to the EEOC statement,

< The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.

< The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a coworker, or a nonemployee.

< The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

< Unlawful sexual harassment may occur without economic injury to the victim. < The harasser’s conduct must be unwelcome.[6]

A number of ambiguities knot attempts to deal with harassment in the courts. Starting with the term sexual advances, everyone knows from their own experience that someone standing fifty yards off and staring can be tremendously disconcerting, while someone else rushing up, draping themselves over us, and sighing, “You’re hot!” can be a funny joke. It’s hard to set down in words exactly what an advance is. Similar uncertainties plague attempts to define just what constitutes the unwelcome part of unwel- come advances because, again, different individuals have very distinct ways of feeling and expressing displeasure.

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reasonable person model

A way of answering questions by appealing to how a typical, reasonable person would respond if asked.

victimhood

Within the field of sexual harrasment, falsely accusing another of harassment as a way of injuring him or her.

On the other end, even if the advance is clear, and even if it’s clearly unwelcome, when do accumulated come-ons add up to a hostile work environment? In some situations, people will feel pres- sured months after a single polite invitation to dinner has been firmly refused, while in other places the boss’s daily proposal to “Get blind drunk together and see what happens” will seem more absurd than threatening. None of this changes the fact that the law’s intention is clear. People aren’t allowed to make sex an employment requirement or contaminate the workplace by acting like it’s a singles’ bar. Anyone who breaks those rules may be subject to prosecution, especially if the behavior is persistent and continues even after discomfort has been explicitly reported.

How is the gap between a clear legal intention and a messy real world bridged? Courts have sought to alleviate the problem of different people seeing things in different ways with a reasonable person model. The basic questions at the core of harassment cases—“Is it an unwanted sexual advance?” and “Is it a hostile work environment?”—are answered, as far as the law is concerned, by the response a reasonable person would give if informed of the situation. Of course, reasonable people once believed the earth was flat, so it’s not clear that the reasonable person definition will entirely withstand the tre- mendous variety of situations in which people come together. Still, the model certainly advances the discussion. The fact that any accusation of harassment, or any defense in the face of an accusation, must pass through the test does wring out extreme cases. The accuser who complains that the boss once winked, or the boss who claims not to have realized that advances were unwelcome even after re- ceiving a glass of ice water in the lap, probably won’t get much sympathy in the eyes of a judge.

2.2 Sex, Harassment, and Ethics Sexual harassment is difficult to justify, and easy to condemn, with nearly all mainstream ethical theories.

< The general welfare, most agree, is well served by a workplace where everyone can work, where labor can be done without the impediments of annoying and molesting come-ons. There are other spots and times that are designated for romantic socializing, and in general, we all get along most harmoniously when we keep our various activities in the places they’re expected to be. Exceptions exist, but looking at the situation broadly, utilitarianism—which sets the general welfare as the highest good—comes down against overly aggressive advances at work.

< More individualistic and liberty-oriented ethics that privilege freedom and each person’s unique expression and aspirations as the guiding ideal for action will likely agree that a workplace plagued by harassment is one where individuals’ freedom to pursue their own hopes and careers is being significantly impeded. The harasser, of course, can always insist that he or she is free to toss out as many blunt invitations as he or she may choose, but it must be remembered that all freedom-based theories restrict us to actions that don’t limit the freedom of others.

< Basic duty theory, which orients ethics in the workplace around the specific imperative to honesty, also rejects harassment because no sane boss is going to admit to it. Harassment, in other words, will likely lead to lying. Along the same lines, the duty to fidelity (keeping our promises) also prohibits harassment assuming the original working agreement was about work and not romance. Finally, the duty to respect others as dignified human beings—worthy of being treated as ends and not means—leaves little room for hostile workplaces.

An ethical review of workplace sexual harassment shows that the practice is difficult to justify. Similar confidence can be attached to a related subject: victimization. Victimhood, in its extreme form, is falsely claiming to suffer harassment as a way of injuring another, very likely a supervisor. Since the ac- cusation is a lie, it will, in most cases, fail an ethical review. Also in terms of the utilitarian principle of the greatest good, it’s probable that society won’t be benefited by people flinging false accusations of sex harassment. In general, the ethical difficulties surrounding victimhood are practical. They surround this question: how can individuals be protected against retributive and false claims of harassment without making the accusation impossible to level?

Probably the most interesting—and conflictive—ground for the subject of sexual advances in the office is the intercultural workplace: situations where employees from distinct nations with divergent customs and habits are asked to work together.

Academic studies have carefully shown how cultural differences affect attitudes about sex, sexual advances, and hostility at work. In one study, American, Australian, and German collegians were offered written scenarios of sexual overtures in offices. Responses from all three nationalities were sim- ilar, but as a group, they were far more likely to brand the episodes with terms like harassment than were their peers from Brazil. Faced with the same scenarios, the Brazilians tended to see only innocu- ous pokes at romance and sex that didn’t constitute abuse of power or create a hostile environment. A similar experiment showed a comparable split between typical adults living in the United States (more

CHAPTER 11 THE AROUSED OFFICE: SEX AND DRUGS AT WORK 273

culturalist ethics

The definition of ethical right and wrong as aligning with a society’s accepted rules and norms of behavior.

prone to see harassment) and Ecuador (more likely to see scenarios as flirtatious or harmless sexual jousting).[7]

Researchers speculate that the distinct responses to the situations don’t indicate superficial differ- ences of opinion, or divergences in local laws, but go much deeper into sweeping ways people under- stand sex and socializing and men and women together. South American culture is generally more eroticized, more tolerant of displays of nudity, and more accepting of raw gestures toward sex. Of course you can’t miss how much more comfortable men and women are with their displayed bodies if you visit Carnaval in Brazil, but it goes beyond that. Something simple—a comment asserting that the workday passes more agreeably when the woman a few cubicles down wears one of her shorter skirts—comes off very differently in South America (where few would object) than the United States (where just citing the example will make some people wince). The expectations, acceptance, and enjoy- ment surrounding sex and suggestion at work, the conclusion is, aren’t any different from the rules governing which side of the street you drive on, or how much can be revealed at the beach; they’re different at different places.[8]

Cultural differences don’t make much difference as long as cultural places remain fixed. But in a world of multinational corporations and falling trade barriers, large organizations (and small ones too) are going to explore international markets. Mixed nationalities in the office are going to follow. Then what? What happens if an American TV station, impressed by the rating-busting success of Russian Sergei Moskvin—the producer behind the topless news program, Naked Truth—invites him to come to America? No one should be too surprised if Moskvin spends the first day in the office bouncing around asking female reporters to give him a waist-up look. And no one should be too surprised if one, a few, or all of the reporters (including the men) protest and maybe file a lawsuit. In ethical terms, there are a number of strategies for resolving these clashes of expectations and customs. In general, they divide in- to two groups:

1. Those working from a culturalist ethical perspective 2. Those planted in one of the traditional approaches

2.3 Office Sex from a Culturalist Perspective A culturalist ethics defines right and wrong as simply aligning with a society’s accepted rules and norms for behavior. For example, in the States we consider ownership of land that we’ve legally pur- chased to be legitimately ours; part of what we morally owe each other is respect for possessions. Ac- cording to the customs and traditions practiced by indigenous peoples in southern Mexico, however, the very idea of private land is immoral. All land, in the ethical sense, belongs to everyone, which ex- plains why the plots used for farming are divided and redivided each year in accord with the dictates of the village chief or consul. So which society is right? Should possession of a plot be determined by a deed or by the chief’s voice? According to a culturalist ethics, either one. It just depends on where you happen to be when the decision gets made. Wherever you are, if you decide in accordance with local customs and traditions, you’re right.

Moving this over to the issue of harassment, the answer to the question “What’s an unwelcome sexual advance?” isn’t answered by recourse to specific dos and don’ts; it’s simply the common practice and expectations of those making up the larger culture where the business is located. If repeatedly mak- ing suggestive comments about how much better the day feels when the woman down the row is short- skirted counts as a hostile work environment in the United States, then it is a hostile one. If the same tone and words are accepted as perfectly normal and appropriate in Brazil, then they are appropriate. No further ethical discussion is required.

Departing from this origin, there are two main resolutions to sex problems coming up in interna- tional offices:

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local deference ethical strategy

Accepting that the customs and habits of those forming a society should provide guidance for all those entering the society.

multicultural respect ethical strategy

Accepting that the customs and habits of members of diverse societies are legitimate and should be respected no matter where they may be.

cultural imperialism

In business ethics, the charge that multinational companies are forcing a single set of ethical codes and attitudes on people with divergent histories, habits, and customs.

1. The “When in Rome…” solution (or local deference ethical strategy) accepts the basic culturalist argument that right and wrong is nothing more than the customs and habits of those forming a society. People joining that society (like Sergei Moskvin coming to America) can expect a kind of grace period while they figure things out, but they must ultimately come into line with local practices. Moskvin will be excused, in other words, for asking women to take off their shirts, but only for the first few days.

Expecting others to adapt to local customs is a reasonable way to manage intercultural ethical conflicts, and it works well for those receiving workers from other places. The catch is that the same logic works the other way. If an American multinational media company expands into the Russian market, then the local partners are going to be standing on solid ground when they begin asking for a level of exposure—female, male, both, or whatever—that doesn’t sit well in the United States. In this kind of situation, employees sent abroad will naturally be uneasy about expectations. Probably some will embrace the change with a sense of adventure while others will recoil, but regardless of the attitude, everyone will probably find themselves in at least a few uncomfortable situations. As for the larger organization trying to hold a business together while spanning various nations and cultures, this is an incurable difficulty with simply accepting local ethics. The resulting ethical schizophrenia—rules within an organization switching as fast as employees are assigned to one or another country—makes setting a specific and coherent corporate culture in the area of sex almost impossible.

2. The multicultural respect ethical strategy also accepts the basic culturalist argument that right and wrong are defined mainly by the customs and habits of those forming a society. In this case, however, people moving to other places aren’t expected to adapt. Those others are expected to accept. When, for example, people from other places come to America, basic respect for the autonomous value and dignity of their customs and habits demands that their behavior be tolerated, even if it gives offense to many locals. In the case of Sergei Moskvin, people in the office will just have to deal with the fact that for him there’s not a big difference between exposing one’s face to the camera and one’s chest.

This respectful response to intercultural ethical conflict is reasonable, even laudable for its tolerance of diversity. The problem, however, underlying the “When in Rome…” strategy continues within a context of multicultural respect: it leaves organizations in an impossible situation when it comes to formalizing policies and procedures governing all those working in all the international offices.

2.4 Office Sex from a Traditional Perspective Most traditional ethical theories approach the multicultural workplace more objectively. They insist that the moral rules of right and wrong transcend cultural diversity, and so open the way to claiming that certain behaviors are acceptable, and others unacceptable, no matter where the workplace happens to be or what countries the employees call home. The Russian news producer Sergei Moskvin plays by the same rules as the Ohio anchorwoman Sharon Reed, and that goes whether they’re in Russia, Ohio, or anywhere else.

The traditional approaches—especially duty theory and rights-based thought—work together fairly well in the areas of sexual innuendo, advances, and harassment: the actions they recommend can be construed to more or less fall in line with standard practices in America and Europe (which, not sur- prisingly, are also centers of the theories’ historical development and interpretation). That clears the way to affirming that those who come to the United States to work will need to adapt their behavior dealing with sex in the office to something resembling the codes of conduct normally in place here. More, organizations opening offices overseas will also implement those codes because the codes’ justification rests on arguments that function independently of local habits.

One clear advantage to this solution to questions about sexual advances in the office is that it al- lows more or less uniform regulations for conduct, no matter who happens to be working, or where they happen to be. The main problem, however, with this solution is that it breeds accusations of in- sensitivity to other cultures and customs. More broadly, American attitudes about sex in the work- place—when they’re forced on those who work for American multinationals in other countries—lead to charges of cultural imperialism.

In the economic world, cultural imperialism, which fits besides terms like the ugly American and globalization, is the charge that US companies are imposing attitudes on local populations, impos- ing on people with different histories and customs who value and want to preserve their different ways of being—and getting—together.

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K E Y T A K E A W A Y S

< Sexual harassment occurs when unwelcome sexual advances or conduct creates a hostile work environment.

< Because sexual language is frequently suggestive more than explicit, and because diverse individuals relate to their own sexuality in distinct ways, it’s very difficult to form explicit rules defining sexual harassment.

< Sexual behavior is culturally diverse, leading to problems in workplaces with international participants.

R E V I E W Q U E S T I O N S

1. In your own words, what is sexual harassment?

2. Sketch two ethical arguments against sex harassment in the workplace.

3. Why might cultural diversity create sexual conflicts in an office?

4. What is the multicultural respect response to sexual tensions in an international office? 5. Why might a multinational corporation’s policy dealing with sexual issues seem sensible in the United

States but be viewed with hatred by employees in overseas offices?

3. DRUGGED

L E A R N I N G O B J E C T I V E S

1. Define workplace drugs. 2. Review recent history of social attitudes toward drugs. 3. Consider problems caused by drugs at work and the reasons for their use. 4. Discuss the ethics of drug testing.

3.1 Rehab Amy Winehouse’s chart-topping, Grammy-winning song “Rehab” is an old-fashioned piece of rock- and-roll defiance:

They tried to make me go to rehab

I said no, no, no

I ain’t got the time

I won’t go, go, go[9]

It’s also a statement about drugs in the workplace, and a very impacting one when the workplace is a concert hall and the worker standing up in front singing is collapsing under the weight of abuse, fall- ing out of her clothes, tripping across the stage, forgetting the lyrics. Winehouse’s picture is all over the Internet with cocaine dabbing her nose. She’s been filmed inhaling crack. When people notice that her arms are laced with cuts, she explains that she knives herself during withdrawals as a distraction from the aching need for another drink or shot or whatever. Still, she sings that she’s not going to “go, go, go,” and everyone out in the crowd sings it right along with her.

Where’s the line? Does it get crossed when she finally gets to the point where she can’t walk out on stage? Or will the line get drawn when people stop paying money to watch her sing and the profits dry up? Or maybe there is no line, maybe she means what she sings and there won’t be any stopping. And no matter where the line is, who decides? Is it her equally distraught, on-and-off husband? Her man- ager, her record label, her fans? No one at all except Amy Winehouse?

Sooner or later her story is going to end badly, but the questions will keep getting asked because drugs lace so deeply through professional lives. In most offices the boost comes from coffee, Red Bull,

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drug

In the area of business ethics, a substance providing a temporary and artificially desirable state, one followed by a reversal to a level below the original condition.

social paradigm shift

An abrupt change in a social attitude.

antidepression pills, or the prescription amphetamine Ritalin (which, to complete the ladder, is used to cut cocaine). Then there are the relaxers, the cigarettes, the gin tonic, the Valium. In between, there’s a broad and colorful spectrum of chemicals that help people go to work, do their work, and get away from work. Some athletes—or just guys wanting to fill out a suit—are using steroids. Others respond to the stress of the workday with high blood pressure or similar, and there are drugs for that too.

The ethics of drugs at work starts with a straightforward question, and then divides into two areas of debate. The question is “What counts as a drug?” The two areas of debate are the following:

1. What should happen when a worker wants to use drugs or alcohol, and that goes against an employer’s policy and wishes?

2. What should happen when the organization doesn’t intervene in a worker’s drug use, or actually encourages it because the organization benefits from the use?

3.2 What Is a Drug? The technical definition of a drug is a substance affecting the structure or function of the body or of one’s consciousness. When discussed in business ethics, only a slice of the broad category is applicable. The subject here isn’t diabetes medications and similar doctor-prescribed substances; the dosing under consideration is recreational drugs and those substances taken to improve performance temporarily, but that don’t seem medically necessary and that may not be medically desirable, especially because they cause negative effects further down the line. Steroids are an easy example.

In the area of business ethics and drugs, it can be stated that, loosely, a drug means a substance providing a temporary and artificially desirable state, one followed by a comedown or a reversal to a level below the original condition. Under this definition, the reason a Red Bull is a drug and, say, taking a nap isn’t is that while both provide some good working hours, Red Bull eventually leaves you even more tired than when you started. It comes with a letdown not affecting those who choose a nap. So- mething similar, but over a longer term, happens to those who use cigarettes to tighten their concentra- tion. For many, nicotine works; it helps get work done. Later, however, when you try to kick the habit, it’ll be hard to concentrate on anything at all for months. What, finally, makes a drug a drug is that in essence it’s something that lets you borrow against the future.

3.3 A Brief History of Drugs (with Lessons That Could Be Applied to Sex) One warning should be inserted before any ethical consideration of drugs, sex, and similar themes in the workplace: both the legal rules as well as social attitudes are subject to change over time. The fact that rules can change doesn’t mean they will or should, but simple prudence demands that anyone try- ing to form a justifiable position in any particular ethical situation should be aware of how significantly society’s broad view of the subject can transform in relatively short periods.

The way we think about almost everything evolves, but the case of attitudes toward alcohol, marijuana, and similar substances go beyond gradual developing: they can turn so abruptly that they fall into the category of social paradigm shifts. The word paradigm (from the Greek word paradeigma) could be translated as “pattern.” Think of it as a pattern of thought or a pattern of pro- cessing things. More than an attitude, a paradigm is a worldview, an almost instinctual way of seeing and understanding experience. A paradigm shift is a change in the way we perceive things as we try to understand them.

As an abstract example, you’ve seen three-dimensional boxes drawn on paper with just a set of twelve lines. You look, and one face seems to be in front and the other behind. But when you blink, the box seems to have shifted and reversed: now the front is the back and the back is front. Called a Necker Cube, this experience of certain things in the world that make perfect sense even when seen in opposed ways is analogous to a social paradigm shift. In both cases, something is out there, and all of a sudden we see it in an entirely different but equally true way. Another, more human example, of a paradigmat- ic shift has been lived by all of us when as boys and girls we passed through puberty. Suddenly, and al- most inexplicably, the way most of us saw members of the opposite sex was different. As it happens, this adolescent shift is based on biological transformations, but the cause can be anything. What’s im- portant is that fundamental views modify very quickly, and over the course of the 1980s in America, fundamental views about drugs in the workplace modified significantly and fast.

In 1981, an American military jet crashed while trying to land on the USS Nimitz, an aircraft carri- er. Numerous crew members were killed. Subsequent tests showed some were high on marijuana. That worrisome result—along with the suspicion that drugs may have contributed to the acci- dent—provoked testing of soldiers across the armed services. Positive results were startlingly high. Quickly, zero-tolerance policies were imposed within the military. Soon, the restrictions spread to the

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civilian side of the federal government. By 1988, the Drug-Free Workplace Act had been promulgated; it required that most companies doing business with the government certify that they maintained a drug-free workplace. More, federal contractors were asked to publish a policy explicitly prohibiting the use and distribution of unlawful drugs at work, and also institute a drug awareness program emphasiz- ing the potential dangers of substance abuse. Soon, even businesses not engaged with the government were customarily advertising themselves as drug-free workplaces.

None of this seems remarkable now, but it would have seemed so in 1976 when then-presidential candidate Jimmy Carter campaigned in favor of decriminalizing marijuana use and his leading expert on illicit drugs believed that cocaine wasn’t a serious public health threat. At the time, Dr. Robert DuPont was head of the National Institute of Drug Abuse, and he too supported marijuana decriminal- ization (though he later changed his mind after learning that thirteen-year-olds in suburban neighbor- hoods like his own were passing around joints at their birthday parties). While tolerance dominated political attitudes toward drugs, the media was busy glamorizing them, especially cocaine. A widely read article informed Americans that “among hostesses in the smart sets of Los Angeles and New York, a little cocaine, like Dom Perignon and Beluga caviar, is now de rigueur at dinners. Some partygivers pass it around along with the canapés on silver trays…the user experiences a feeling of potency, of con- fidence, of energy.”[10]

It seems like that must have been a long time ago. It’s not, though—only a few decades. And there’s no reason to believe we won’t see similar shifting in the coming years; we just don’t know what will change and which way it’ll go. Regardless, the lesson for business ethics is simple and applies whether the subject is drugs or sexual advances or whatever in the workplace. It’s that the broadly ac- cepted rules and social attitudes should be handled—and relied on—with care.

3.4 What’s Wrong with Drugs at Work? The most commonly discussed issue in the area of drugs and work involves the organization’s interest in promoting and enforcing a drug-free workplace. Of course space is made for coffee. It’s true that the drink can leave people irritable and aggressive, but the effects are mild and since almost everyone uses it, there’s not much to do by way of dissuasion anyway. And pushing into the slightly stronger stuff, most organizations accept the occasional wine and beer shindig in the office corridors on Friday after- noons to loosen the atmosphere a bit. For the most part, however, companies want their workers straight for two reasons: productivity and safety.

A study published in the Journal of the American Medical Association (JAMA) asserted that postal workers testing positive for illegal drugs (typically marijuana and similar) were significantly more likely to be fired, injured, disciplined, or absent than their nonusing peers.[11] If that study accurately repres- ents reality, then companies stand on firm ground when arguing that because they have a right to ex- pect a full day’s good work for a full day’s pay, they can demand that employees be drug free. If they’re not, the argument goes, the statistics indicate that they’re less productive. And if they’re absent, then their coworkers who count on them being there may end up being less productive also. Drug use, fin- ally, becomes an ethical breach of the duty to fidelity. It violates the responsibility employees have to honor their commitments to employers.

Moving in a slightly different direction, all public companies hold responsibilities to their share- holders. They include, in most cases, the obligation to make a profit—and to make as large a profit as possible within the parameters of normal business practice. That obligation may well go unfulfilled, however, if a workplace is not drug free. Because companies frequently pay health insurance premiums for their employees, workplace injuries climbing in number and severity resulting from drug use ulti- mately add to the firm’s operating costs. And these subtract from the annual profit.

The stakes rise as occupations become more prone to accidents affecting those outside the com- pany or organization. While a walking mailman probably can’t do too much damage to others no mat- ter how many swigs he takes from his hip flask, a crane operator, a school bus driver, an airplane pilot, a technician at a nuclear power plant, all these kinds of posts demand that employers take aggressive steps to ensure workers are well suited to carry out their duties. If they’re impaired and make mistakes, there’s no telling who or how many may suffer. What’s certain is that lawyers will chase to the scene of any accident fitting those characteristics. As the punitive lawsuits pile up, the catastrophic accident caused by drug use will probably turn out to be a financial disaster for the company. It will also be an ethical nightmare. Assuming the drug use causing the accident was preventable—a more scrupulous and sternly applied policy would’ve cleaned out the workplace and so avoided the accident—all the ma- jor ethical theories produce condemnation:

< The duty to avoid harming others is broken. < The utilitarian imperative to serve the general welfare is breached. < The right to individual freedom of the accident’s victims gets jeopardized or destroyed.

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drug test

A chemical analysis to determine whether an individual has used drugs.

informed consent

With respect to drug testing, a decision to accept possible testing after making a careful and deliberative judgment.

Summarizing, the following concerns lead to policies within most organizations—as well as concrete actions—aiming to control how employees treat their mind and bodies:

< Drugged employees can be less productive. < Employees using drugs can cause others to be less productive. < Medical insurance and other costs elevate as drug use rises. < Risks to third parties increase with drug use.

Against these powerful arguments in favor of limiting or eliminating drugs in the workplace, individu- als naturally chafe at demands made by their employer that go beyond specific job tasks. Many of them figure that they’re paid to do a job, and as long as they’re doing it, the boss ought to leave them alone. While it’s clear that the Amy Winehouse situation is an extreme one, it’s also quite typical in terms of its basic structure. On one side, the people writing her paycheck want her getting to the workplace on time and then performing well. They want her remembering the lyrics and they’d prefer that she not fall off the stage. She, on the other hand, wants to enjoy her leisure time as she pleases, and she’d prefer that others just leave her to do her work in the way she sees fit.

3.5 Drug Tests: Actions by the Organization to Stop Drug Use From the management’s side, a number of actions may be taken to diminish drug use in the workplace. Most are noncontroversial. Just like cigarette boxes come with dire warnings, so too company policy handbooks and employee bulletin boards are used to underline the potentially negative effects of use and abuse. More positively, drug-free lifestyles may be encouraged through an organizational culture stressing healthy choices. Special bonuses may be given to those who quit smoking (or certain priv- ileges may be denied to those who don’t). Possibly, a gym membership will be included with a standard contract. Biking to work may be encouraged (the advertising agency Crispin Porter Bogusky has a bike repair shop right in its offices). More incentives could be added but, in general, steps organizations take to encourage physically healthy lives receive little resistance and do, at least indirectly, discourage sub- stance abuse.

With increasing frequency, intrusive steps are also being taken to separate drugs from work. Drugs tests are the most notable. Over the course of the last decade, scientific advances have made these probes easier to administer and less expensive to apply. That, combined with hardening attitudes about drugs in society and at work, has led to increasingly frequent testing. The checks are applied to filter new employees and also (though less frequently) to guarantee the condition of those already on the payroll.

This testing is a controversial practice both legally and ethically. There is agreement on one point: no one can be forced to take a drug test. At least with respect to work-related activities (as opposed to police-related events including drunk driving), any employee is always free to say no, to quit, and leave. Within the business world, all drug testing must be consensual. Informed consent is an employee agreeing to undergo a drug test (or a series of them, or at least be open to possible testing) only after fully understanding the reason the organization is asking for the test, what is being tested for, and knowing—fully—the extent to which he or she may refuse. Beyond simply having information, in- formed consent also implies deliberation. In a complicated situation, few are able to make good de- cisions instantly; typically, sleeping on a question or something similar is necessary for an individual to feel as though he or she may consent to a test in a confident and informed way. Finally, consent must be voluntary in the sense that those agreeing to it understand what pressures are operating to encour- age one or another decision. Naturally, people are going to feel a variety of tugs and pulls (from peers, from a union or civil rights organization, from management) to make a certain decision. For the de- cisions to be voluntary, those pressures must be understood and accounted for. Basically, informed consent means those subjected to the test can’t be railroaded.

In some fields, refusal to submit may lead to termination (commercial airline pilot). In others where an employer has no health-connected reason to seek a test, and no reason to suspect that drug use or abuse is occurring, the employee should know that refusal can be an option, both legally and ethically.

3.6 Legality and Types of Drug Tests Legally, the question about the employee’s right to say no to testing is a moving target. Currently, the federal government and most states allow drug screening as part of the hiring process and generally al- low tests on existing employees as a condition for continued employment if there’s reasonable ground for suspicion of use. Grounds for suspicion include slurring words, acting disoriented, seeming un- focused, and similar. Most college students have a pretty good idea. Some states, including Minnesota,

CHAPTER 11 THE AROUSED OFFICE: SEX AND DRUGS AT WORK 279

privacy (as a right)

The right to be left alone by others.

freedom (as a right)

The right to pursue our own happiness in the ways we as individuals determine.

slippery slope

The idea that once you start doing something, it’ll be difficult to stop doing more and more of it.

allow tests to be performed on random employees even without cause for suspicion. In this case, ad- vance notice is required of the random test process.

As for the kinds of tests that are applied, urine is common. Obviously, bosses sniffing alcohol on the breath is a functioning, though unscientific, check. Saliva can be analyzed. Because traces of drugs remain detectable in hair for much longer than urine (about three months versus three days) and be- cause it’s easy to clip a few strands, this type of drug test is not uncommon.

3.7 Ethics of Drug Tests Ethically, justifications for drug tests rest on the legitimate reasons organizations have for wanting to weed out users from the workforce: drugged employees can be less productive, and cause others to be less productive, and use may raise operating costs as well as pose risks to third parties. The linchpin ar- gument is that these concerns give organizations a right—and also a responsibility—to do all they can to create drug-free workplaces. Tests serve that obligation. Because they’re a reasonable way to keep worker performance up, operating costs down, and everyone as safe as possible, employers have a re- sponsibility to apply them.

Critics of drug testing also muster strong arguments. Most rest on convictions relating to individu- al dignity and rights. Putting their argument into the largest perspective, it’s simply a fact that if, as a society, we decided to rid ourselves of all cocaine use, we could do that in a week. We’d only need to le- gislate that every single citizen would visit a government office every single morning and pee in a cup. Positive results would trigger an automatic jail sentence. Cocaine—along with its accompanying prob- lems—would disappear in little more time than it takes to broadcast a just-say-no TV ad.

No one advocates this truly zero-tolerance enforcement strategy, however. The central reason no one proposes total testing is that basic convictions concerning human rights provide two direct forms of protection. First, our intrinsic dignity as individuals guarantees some measure of privacy. Privacy is the right to be left alone by others, to conceal ourselves from their prying eyes. What we do inside our own homes and with our own time is our—and no one else’s—business.

This right to a dignified space for me stands on its own, but also extends as the right to define my own unique identity for myself. If everything we think and do is seen by others (imagine your life filmed and broadcast on TV twenty-four hours a day), then we no longer have a self. All our energy and time would get devoted to presenting an image and appearance for others. Privacy is the space each of us needs to create ourselves as who we are. Drug testing finally, insofar as it intrudes on our private reality, also intrudes on the right each of us has to be ourselves.

The right to privacy can be construed slightly differently in terms of humiliation and exposure. Be- ing forced to pee in a cup is embarrassing; it’s being treated like a farm animal. On this front, the right to privacy is the guarantee that certain private things like that won’t intersect with anyone else unless we make that decision ourselves. The other articulation, exposure, is especially pertinent today. In an electronic world, personal information about ourselves, once it’s tapped into a computer, can end up anywhere at any time. In the end, who knows who’s going to get their hands on our lab results? Or when? Because it could be anyone into the indefinite future, there’s an element of invasive exposure in many drug-testing procedures.

The same fundamental rights that protect privacy also guarantee freedom—the right to pursue our own happiness in the ways we as individuals determine. Of course this right gets suspended the second our drug use ruins someone else’s freedom by injuring them in a car wreck, but until then, drug tests are going to appear as a violation of fundamental liberty. According to this argument, the reason we’re out in the economic world to begin with, the reason we’re going to work and earning money, is precisely to allow us to pursue our happiness in the ways we choose (by providing shelter, some drinks on Friday night, the occasional gift for the ones we love, opportunities for our children, and similar). If, finally, the reason we go to work is to have and express our freedom, and the first thing we do when we get to work is accept the imposition of a drug test designed to find out exactly what we were smoking Friday night, then the entire point of going to work in the first place is undermined.

Besides the privacy and freedom arguments against drug testing, there’s also a slippery slope con- cern. A slippery slope is the idea that once you start doing something, it’ll be difficult to stop doing more and more of it. Start with the proposal that random drug testing will be performed in a workplace once a month on one employee, and the sample will be tested only for some hard drug, say, heroin. For most people in most offices, that doesn’t sound very threatening, and even though it may be a violation of basic rights, some will be tempted to simply accept the measure because, really, it’s not that big a deal, not worth a fight. So the program is implemented. A few months later, the proposal comes down to test not one, but two employees every month. Again, not a big deal and no one objects. Then the test gets expanded to check for cocaine. You see where this is going. The process repeats and, in the end, everyone’s getting tested all the time for everything. The slippery slope argument against drug testing in the workplace is that individual liberties are so important that they must be entirely protected from

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drug test reliability

The extent to which a drug test returns false positives or erroneous negatives.

the very beginning. Stated slightly differently, rights can’t be done halfway. You either have and protect them, or you don’t. If that’s persuasive, then everyone should band together against drug testing, even those who’ve never had a drink or smoke in their lives.

A fourth argument against drug testing is about half ethical, half technical. It concerns drug test reliability. Even top-notch manufacturers concede that their products produce false positives in some very infrequent cases. A 1 percent error rate seems, on the face of it, acceptable, but if you personally happen to be that 1 percent, your perspective may change. Of course, to a certain extent this objection can be answered by technical advances: if a 1 percent error rate is too high, the product can be im- proved and now it’s 0.1 percent or 0.01 percent. Probably, however, there’ll always be some possibility of error, and as long as there is, the argument remains that the ethical cost of misidentifying a clean worker as a user outweighs the benefits accrued from correctly identifying those who really are using.

Finally, in the face of the organization’s justifiable desire to impose drug tests, the arguments against accepting testing are:

< The right to privacy < The right to freedom < Slippery slope concerns < Imperfect testing

K E Y T A K E A W A Y S

< In the workplace, the term drugs may be used to denote a substance affecting the mind or body in a temporary and artificially positive way.

< Social attitudes toward drugs in the workplace have altered very rapidly over the previous decades and may (or may not) continue to change.

< Drug use at work can enhance performance.

< Drug use at work can lead to less productive employees, higher costs of doing business, and risks to third parties.

< Drug testing at work pits the employer’s legitimate interest in maximizing worker performance against individual rights to privacy and freedom.

R E V I E W Q U E S T I O N S

1. What is a social paradigm shift?

2. What are some legal substances that count as a drug at work? What are some illegal ones?

3. What are some reasons an employee may want to use drugs at work?

4. Justify in ethical terms the application of drug tests to employees of the aircraft maker Boeing.

5. Describe two distinct reasons why someone who has never used a drug in his or her life might refuse a test at work. Convert those reasons into well-founded ethical arguments.

4. THE ORGANIZATION WANTS YOU TO USE DRUGS?

L E A R N I N G O B J E C T I V E

1. Examine the ethics of organizations facilitating drug use by employees.

4.1 When Drugs and the Workplace Mix The conflict between organizations demanding drug-free workplaces (and testing to be sure they get them) and individual rights to privacy and freedom center most discussions of drugs at work. There’s another area of debate, however. What happens when your employer wants you to use drugs?

Take the case of Amy Winehouse. Everyone interested in music—and many who aren’t—know all about her. Every time she gets photographed inhaling something that looks illegal or gets videoed trip- ping out of a party with her dress slipping down her chest, the images, the sound, and the story race

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complicit organization

With respect to employee drug use, an organization that knows employees are using drugs and doesn’t intervene .

Samaritanism

The ethical responsibility to step in and help others when it’s possible to help and when the personal cost is not disproportionate to the good that can be done.

across TV channels and the social web and she’s back in circulation. People talk, remember her songs, ask if she’s got anything new coming out, and wonder when she’ll bring her notorious road show to their town. Anyone who didn’t know better would be tempted to suspect that the whole thing was fake, a giant scam dreamed up by a genius publicist to get Winehouse all the free attention today’s connected world can generate.

Pop stars tend to have short shelf lives and long lists of people making money off their fame. Those on the periphery of Winehouse’s success—her managers and promoters and publicists and lawyers and accountants—all know that she probably won’t be providing their income for long, and it’s in their fin- ancial interest to maximize what she can give while she still can. Will her body and life suffer from her cocaine use? Yes, but most of that damage probably won’t register until after the flow of money she’s producing has slowed to a trickle. Given that reality, her corporate sponsors have little professional reason to want to intervene in her life to help her slow down the intake. Just the opposite, actually.

Something similar occurs in the world of professional sports. Anyone who’s watched professional football or soccer players has witnessed this scene: the athlete down and writhing on the field, clutching frantically at a knee or ankle. Teammates slink away, concerned about their companion but also thank- ing God it wasn’t them. Trainers hurry onto the field. Commercials interrupt the drama. TV returns and the game goes on. Then, five minutes later, he’s back like nothing happened. Commentators ap- provingly acknowledge the guy’s toughness. Advertisers are relieved because viewers stay fixed to the screen. The team owners in their box are happy to be getting their money’s worth from their employ- ees. For every one of them, drugs and the workplace are an excellent mix.

4.2 The Ethics of Drugging Employees There are two broad categories of organizationally sanctioned employee drug abuse. The first is the employee doing it, and managers don’t get in their way. The second category belongs to those organiz- ations actively encouraging drug use. It goes without saying that the next higher degree of involvement: sneaking drugs into an employee’s drink or diet is both illegal (a form of assault) and an unethical breach of individual privacy and freedom rights.

Complicit organizations know employees are using drugs and don’t intervene—they may sus- pend drug testing or refuse to initiate it—because the use suits the organization’s interest. This could be the football coach who just doesn’t want to know how his lineman suddenly exploded with muscle over the summer. Or the complicity could be for the young lawyer in the firm who works to all hours and al- ways seems peppy and alert. One day someone may notice a pill case dropping out of her purse, but no one’s going to ask any questions as long as she keeps cranking out those billable hours.

Should questions be asked? One answer is simply “No.” The football player and lawyer are free in- dividuals pursuing their own welfare as they see fit and as they’re free to do. They’re not hurting any- one else along the way and should be left alone. This argument, based on the values of individual rights and freedom, is very strong.

Things become more complicated, however, in a case like Amy Winehouse’s, one where she’s clearly being damaged by her abuse. The root question is straightforward: when should I go out of my way—or perhaps even harm my own interests—to help out someone else? If I’m Winehouse’s manager, and I’m making money off her publicity-grabbing drug episodes, at what point do I need to say the money isn’t worth it, and my human responsibility for the well-being of those around me requires that I try to do something (like send her to rehab)? This scenario involves Samaritanism, which itself makes up an entire area of ethical study.

Samaritanism—taken from the biblical parable of the Good Samaritan—is the ethical responsib- ility to step in and help others. Most duty theorists contend that we have an unavoidable responsibility to help others in need as long as the cost to ourselves is not disproportionately burdensome and as long as there’s some possibility of actually aiding. Taking a simple example, a person who can’t swim has no responsibility to jump in after a drowning man, but Michael Phelps would have an obligation to get in the water unless the flow was so violent and fast that even he would be powerless to help. As for the manager faced with a self-destructing client, it’s hard to see—from this ethical perspective—what could erase his obligation to help Winehouse clean up since the only thing he has to lose is money.

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enabling organization

With respect to employee drug use, an organization that actively encourages, or at least facilitates, drug use by employees.

4.3 The Ethics of Drugging Employees: Enabling Organizations Enabling organizations actively encourage or at least facilitate drug use by employees because it serves their interest. Of course almost all organizations engage in this facilitating to some small extent. The New Year’s office party where drinks are free and free-flowing is, at bottom, a drug event where al- cohol hopefully washes away some of the resentments and angers accumulated over the preceeding twelve months.

More aggressively, many occupations (especially those directly involving selling) require employ- ees to be cool—and look cool—under pressure. This can be difficult. A story from the Atlantic magazine discusses beta-blockers, which are essentially blood-pressure medications that coincidentally reduce the outward appearance of nervousness: they help you avoid the sweat beading on the forehead, trembling hands, and dry mouth.[12] As the story notes, beta-blockers aren’t nearly as potent or danger- ous as the doping of North Korean Olympic athletes, but they’re not a harmless over-the-counter med- ication either.

Beta-blockers carry real risks. Even granting the risk, though, it’s not hard to imagine that more than one supervisor has found a way to get the Atlantic magazine story into the e-mail of an employee who’s had a history of tightening up at key moments. In fact, the business consultant Keith Ferrazzi once made the recommendation on his web page, but then withdrew it after receiving complaints: “I originally included a reader’s recommendation of the beta blocker Propranolol in this list of public speaking tips, but have removed it after taking to heart the concern of many KF.com readers.”[13]

Somewhat more ominously, there’s the infamous case of the Studio 54 busboys at the height of the club’s popularity. Blonde (frequently) and naked (usually) except for tight spandex shorts, they were plied with drugs to increase their energy level and commitment to customer service in all imaginary ways. The busboys, it must be noted, were more than willing participants, but the fact that everyone agreed doesn’t necessarily make the scene ethical. One useful tool for evaluating this exuberant but also troubling situation is the already developed notion of informed consent. In order for the case to be made that drugging willing employees is acceptable, it will help to fulfill the following requirements:

< Employees must fully understand what they’re being given, as well as the risks and benefits. < Employees must fully understand why the drugs are being provided. < Employees must be given a clear indication of what acceptance or rejection means for their

career. < Employees must be allowed a deliberative decision—the option should be offered for

consideration, not thrown at them for a sudden yes-no answer. The fact that an employee makes an informed decision to use performance-enhancing drugs at work doesn’t rinse an enabling employer of all ethical responsibility. Business is just like any other aspect of life in the sense that employers, like everyone else, have a duty of Samaritanism or beneficence—that is, a responsibility to look out for the long-term welfare of others so long as their own welfare isn’t sig- nificantly affected. Further, the responsibility to respect the humanity of others and not use them as a simple tool in our schemes (to see them as ends and not means) translates as a demand that organiza- tions advocating internal drug use clarify what their own motives are. Finally, if the drugs are illegal, the possibility that people will end up in jail needs to be factored into consideration.

Going beyond the ethical discussion involving only employer and employee, there are a number of broader and difficult questions that could be pressed, especially by proponents of utilitarian theory. If right and wrong is ultimately defined by the general public welfare, it may be difficult to justify drugs in the workplace even if employer and employee wholeheartedly agree to use them. What happens, for ex- ample, at other workplaces? In the highly competitive field of professional sports, it’s clear that when one team starts using some substance, others will have to join in or get beaten on the playing field. In other occupations the need to imitate to succeed may not be so immediate, but there still may be an undertow. If Amy Winehouse is eating up all the free publicity in the music business with her drug- fueled exploits, aren’t other musicians going to feel pressured to follow along? If a sales team at Smith’s Tires is using beta-blockers and winning deals, aren’t the sellers at Jones’ Tires going to start feeling the need to swallow some pills? If the effects, finally, of drug use in the workplace go beyond that particular spot, then the effects on those outsiders need to be accounted for in order for a final decision to be well justified.

K E Y T A K E A W A Y S

< In some cases employee drug use may serve the organization’s interests.

< Organizations may be complicit with or enabling of employee drug use.

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R E V I E W Q U E S T I O N S

1. Can you provide your own example from the business world of an organization that is complicit with respect to employee drug use?

2. Can you provide your own example from the business world of an organization that is enabling with respect to employee drug use?

3. Why might Samaritanism diminish workplace pressure on employees to use drugs?

4. What are the requirements for informed consent when it comes to employees accepting the organization’s invitation to use drugs?

5. CASE STUDIES

5.1 Holly Madison for PETA

Source: Photo courtesy of Alisha Vargas, http://www.flickr.com/photos/alishav/3461411273/.

PETA (People for the Ethical Treatment of Animals) is an animal rights organization. According to their website, “PETA focuses its attention on the four areas in which the largest numbers of animals suffer the most intensely for the longest periods of time: on factory farms, in the clothing trade, in laboratories, and in the entertainment industry.”[14]

Both an organization and a cause, PETA depends on public attention and donations. Attention is necessary be- cause raising consciousness about animal suffering is more or less a prerequisite to fighting against it. Nearly all companies causing animal suffering as part of their daily business struggle mightily to hide it from their consumers: what’s not seen, the reasoning goes, isn’t a problem. PETA wants cruel animal treatment to be seen.

Donations are also necessary because PETA is a nonprofit. Many people give cash, but some give their time and themselves. Celebrities can be especially helpful given their ability to generate interest and grab attention in a noisy world. One celebrity participant is the Hollywood actress Alicia Silverstone. In August of 2010, she was featured in a video on PETA’s home page. Here’s the accompanying text: “Sexy Hollywood star Alicia Sil- verstone bares all in PETA’s first ever naked veggie testimonial, shot by acclaimed director Dave Meyers.”[15]

Much of the video is shot in slow motion. Silverstone pulls herself out of a swimming pool, leans into the cam- era, holds it with her smoky eyes, and talks about the advantages of being a vegetarian. No clothes are vis- ible.[16]

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Q U E S T I O N S

1. Alicia Silverstone praises the virtues of vegetarianism nude. Do you believe this is an example of product sincerity—that is, of openness and honesty about what’s being sold?

< What is the product here?

< What elements of its presentation might seem insincere?

< What elements of its presentation might seem sincere?

< On balance, why do you believe the short video is sincere or insincere?

2. Almost certainly some people watched this video because they wanted to see a nude woman.

< What is a prurient interest?

< Make the case that this video promotes a prurient interest.

< Assuming the video promotes a prurient interest, who should feel ethically ashamed of their action: Silverstone, PETA, the viewers, some combination, someone else?

3. Silverstone could have filmed her monologue with her clothes on. Make the case that she should have because her decision to strip down to get attention results in her objectification.

< In terms of the ethics of objectification, is there any difference between letting people see you in a video and on a nude beach? Why or why not?

< PETA is a respected nonprofit organization (which isn’t to say everyone agrees with their methods and cause, only that most respect their dedication and altruism). Does that give them a license to objectify Silverstone? Why or why not?

< Should this book’s web page include a link to watch the video? Justify your answer in ethical terms.

5.2 Milan?

Source: Photo courtesy of Oteo, http://www.flickr.com/photos/52871206@N00/1286382332.

The question posted by Chourok C on the Yahoo! Answers web page begins this way:

I just started this job 2 weeks ago as the CEO’s personal assistant. He is married 3x and is a very charismatic man, the CEO of a self built multi-million empire.

After a few days, he suddenly asked me if he could take me out to diner in London, if I book my flights and hotel he will afterwards reimburse me.[17]

It was then, she relates, that she knew he wanted to sleep with her. In her words, she’s “totally not inter- ested, but wants to preserve the job by not rejecting him.” So she made an excuse to get out of it and her post continues: “He then bothered me for hours about giving him good reasons why I couldnt go. Then he said OK, next week we will go to Milan! He is a very powerful man, and I just get nervous of him. But I really do not want to lose my job. What should I do?”[18]

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Q U E S T I O N S

1. What should she do? Justify in ethical terms.

2. Here’s an answer posted by aznelepahnt5: “If he’s good-looking, and there’s a guarantee that you’ll get better pay/promoted, then yes, you should do it.”[19]

Make the case that she’s ethically free to follow the advice, to say yes to advance her career.

3. Make the case that Chourok C is not ethically free to go to Milan with him in order to advance her career, regardless of whether she’s attracted to him or not.

4. The poster called Srta. Argentina answers, “He can’t fire you because you rejected his sexual advances. You can sue him if he does. And you can file a sexual harassment claim against him.”[20]

< What is sexual harassment?

< Sketch the harassment case against the CEO.

< At what point in the chronology does the CEO’s behavior cross from the ethically acceptable to the unacceptable? Why?

< If the CEO hired you to form an ethical defense of his behavior, what would the case look like?

5. The poster called Skater Boi proposes an aggressive solution: “Get a voice recorder and record what he says. blackmail if he tries to fire you.”[21]

It sounds like the blackmail Skater Boi is proposing would entail threatening a sex harassment lawsuit unless the boss gives her favorable treatment.

Ethically, is there any difference between the boss threatening to fire her unless he gets what he wants and her threatening to turn him in unless she gets what she wants? If so, what is it? If not, why not?

5.3 International Affair

Source: Photo courtesy of Nadia J., http://www.flickr.com/photos/n_/2341401406/.

A newspaper account gives an idea of how different the world can be on the other side of national and cultur- al borders. The report tells of an unnamed executive, a twenty-two-year-old woman from St. Petersburg who found herself locked out of her office after resisting her boss’s lewd advances. She took her case to court, “hoping to become only the third woman in Russia’s history to bring a successful sexual harassment action against a male employer.”[22]

She didn’t make it.

According to the judge who ruled against her, everything had just been part of normal courtship and ro- mance. He went so far as to affirm, “If we had no sexual harassment we’d have no children.”

Sexual harassment—as the concept is defined and understood in America—is a customary part of life in the Russian workplace. In Russia, 40 percent of female professionals have had sex with their boss at least once, ac- cording to the story. Yes, that’s 40 percent. Rounding out the picture, “Eighty per cent of those who particip- ated in the survey said they did not believe it possible to win promotion without engaging in sexual relations with their male superiors. Women also report that it is common to be browbeaten into sex during job inter- views.”[23]

286 THE BUSINESS ETHICS WORKSHOP

Q U E S T I O N S

1. What is a culturalist ethics?

2. American multinationals are sometimes accused of being ugly and imperialist because they force members of other cultures to accept a system of values and rules that conflict with local practices, beliefs, and customs.

< How could that accusation be described when an American company installs itself and its American policies for employee behavior in Russia? What basic values support the accusation?

< An American laboring in a multinational corporation is assigned to open and manage an office in Russia, one that will be staffed by locals. How could a cultural ethics be transformed into an obligation that all those in the office more or less adapt to the customary expectations of sex in the workplace brought from the States?

3. Back in America, direct and explicit demands of sex for work are uncommon. Sex at work, however, or at least sexiness and attractiveness, does seem to connect with job offers according to what economists Markus Mobius and Tanya Rosenblat found when they got together and performed a series of experiments discussed in their paper “Why Beauty Matters.” Their conclusions about the power of attractiveness in the typical US workplace can be partially summarized by recounting one test.

Employers were divided into two groups and asked to hire a few job applicants. Some employers got a stack of CVs. Others got the CVs with a photo attached. The two groups then sorted out the applicants that they would like to hire. Comparing the results revealed a beauty premium. The fact that someone—whether it was a man or a woman—was physically attractive converted in the mind of employers into a job qualifier. That is, those men and women who were good looking were also judged as the most likely good workers, the kind you want to hire because they’re capable and will do a good job.[24]

Is there a single ethical argument that could be set against the Russian custom of demanding sex to get a job, and the American custom of (to some extent) demanding sexiness to get a job?

5.4 Drugs and Drug Testing at Coke

Source: Photo courtesy of Allen Li, http://www.flickr.com/photos/mag-cafe/529986283/.

John Pemberton came up with the original Coca-Cola recipe in 1886 and sold it out of Jacob’s Pharmacy in At- lanta, Georgia. Advertised as a medicine, the drink was supposed to cure headaches and impotence.

CHAPTER 11 THE AROUSED OFFICE: SEX AND DRUGS AT WORK 287

Coke certainly delivered a rush. Brewed to contain a massive dose of cocaine, the drink was virtually guaran- teed to succeed. Not surprisingly, many over-the-counter medicines started boosting their appeal by includ- ing the coca leaf extract. By the end of the century, however, public attitudes began turning. Rather than a cure, cocaine came to be seen as a ruinous addiction. Coke responded by radically cutting the cocaine in the drink, and by 1903 there was none, though the product still contained (and to this day contains) flavoring from the same coca leaf that earlier provided the drug. Finally, in 1914, the Harrison Act effectively outlawed the sale and distribution of cocaine both on its own and as an ingredient.

The other side of the original Coca-Cola jolt came from the kola nut, which added a slightly bitter taste to the drink, and lots of caffeine. (“Coca” corresponds with the coca leaf and cocaine, “Cola” with the kola nut and caffeine.) That additive also fell out of the public’s favor, though not to the extent or depth of cocaine. In 1911, the US government sued to get the substance removed on the grounds of its pernicious effects, but failed (United States v. Forty Barrels and Twenty Kegs of Coca-Cola). The next year the Food and Drug Act defined caffeine as “habit forming” and “deleterious,” and required that the substance be listed on Coke’s label.

Q U E S T I O N S

1. An accounting office manager stumbles on a warehouse full of the original, cocaine Coca-Cola.

< Make the case that he has a responsibility to provide the bottles to his workers and encourage them to drink the liquid down. What benefits could the manager hope to receive? Why does the manager hold a professional responsibility to achieve those benefits?

< Make the case that the manager has a responsibility to provide bottles of both the original (now illegal) formula and today’s formula to staff members, and allow them to choose to drink either one, both, or neither.

< Make the case that he has a responsibility to provide bottles of only today’s formula to staff members, and allow them to drink it or not.

< Make the case that, ethically, he should tolerate no Coca-Cola of any kind in the workplace.

2. In a web posting, mmafan, from Dayton, Ohio, writes about his experience working for the Coca-Cola company: “We even had someone witness a merchandiser, on the clock, in uniform, and in a company vehicle, smoking a joint in a store parking lot. Not only did the union prevent Coke from terminating or disciplining him, they protected him from submitting to a drug test. So Coke had to just let it go. All the union did was protect the lazy, the incompetent, and the screw-ups if you ask me.”[25]

In response, the union could mount a number of arguments to defend their decision to not let Coke administer a drug test. The most frequently cited ethical reasons to refuse drug tests are the following:

< To protect the right to privacy

< To protect the right to freedom

< Because of slippery slope concerns

< Because of imperfect testing

Which of these kinds of arguments would best support the union’s decision to protect the employee from a drug test? What would the argument look like?

3. Mmafan believes the union did nothing more than “protect the lazy, the incompetent, and the screw-ups.” This complaint is actually the root of a powerful and thoughtful ethical argument in favor of drug testing because drug-free workplaces maximize employee performance. Fill out the argument:

< Whose obligations are served by drug tests?

< What are those obligations?

< Name an ethical theory that forcefully supports the use of drug testing in the workplace. What’s the reasoning?

4. The Coca-Cola company’s history is laced with cocaine.

< Given the fact that cocaine was a key ingredient in getting the Coca-Cola Company off the ground, does that organization have any right to preclude the use of drugs in the workplace or anywhere else? Why or why not?

< When Coke included coke, the substance was legal, and a respected medicine. Should that fact affect your answer to the previous question? Why or why not?

288 THE BUSINESS ETHICS WORKSHOP

5.5 Acid Rock

Source: Photo courtesy of Paige Powers, http://www.flickr.com/photos/paigggeyy/5533236567/.

Ultimate-Guitar.com is a guitar and rock site. One of its articles begins this way: “Of the many articles in Ul- timate Guitar which deal with the history of musicians in this day of modern music, there is one participant who seems missing. The history of this participant is responsible for influencing a huge range of artists, pos- sibly second to none.”[26]

The participant is LSD. Without that, the column affirms, there’d be no Grateful Dead, Carlos Santana, Jimi Hendrix, Doors, Beatles, or Pink Floyd. At least not as we now know them. The article covers a lot of ground, but the basic point is that taking the illegal drug LSD helped these guys become great musicians. In the com- ments section, many people responded.

CHAPTER 11 THE AROUSED OFFICE: SEX AND DRUGS AT WORK 289

Q U E S T I O N S

1. ATL_420 writes, “I don’t know about y’all, but I have recorded music while tripping on acid. I was the most talented I have ever been on guitar during those hours.”

Assume you are the manager of ATL_420’s band. Convince yourself that you have an ethical duty to make sure he’s got all the LSD he needs when he’s in the recording studio. Make the case, in other words, that you should be an enabler.

2. Strat_Monkey says, “I’m going to go with what I’ve heard from several drug-using musicians which is basically: Yes, Drugs CAN open your mind and allow you to make better music, BUT if you take too many you will f*ck yourself up good and proper. Moderation is the key here.”

How would someone who subscribes to a utilitarian ethics (the greatest good for the greatest number should be sought) define the term moderation? What kinds of fears would this ethicist have about allowing Strat_Monkey to use LSD?

3. Ramco addresses this to the article’s author:

If this article causes even one person to try LSD then you are a monster.

LSD is a fungus that degenerates the brain stem, and continues to remain in the brain for years, causing “acid flashbacks” at unexpected and inopportune times. With the exception of heroin, LSD has the worst long-term effects of any drug.

Also, LSD has given us some of the WORST music ever. There are plenty of drug- inspired songs that only appeal to those on drugs.

I am disappointed in UG for approving this article which is nothing but an advertisement for LSD, which is not only dangerous but also illegal.

Use two distinct ethical theories to develop two independent arguments that the article’s author is a monster.

4. Assume that both sides of this argument have some hold on the truth. In some cases LSD really did help musicians produce excellent music, but the effects of LSD use are also extremely harmful. How do you decide where to draw the line? How much social harm are you willing to tolerate for some good music? Justify.

5. One way for music company executives to manage the fact that some of their acts use a lot of drugs is with complicity—that is, adopting a kind of “don’t ask, don’t tell” policy. Even though drug use wouldn’t be encouraged, it wouldn’t be tested for either. What are some of the ethical advantages to this approach? What are some of the disadvantages?

6. In the comments section of the Ultimate-Guitar.com article, kosarsosar adds this about a hallucinogenic drug: “It didnt do much for me, however it did make my girlfriend run around the house flapping her arms like a bird.”

Ethically, is there anything wrong with taking a drug that does that to you? If so, what? If not, why not?

290 THE BUSINESS ETHICS WORKSHOP

1.

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ENDNOTES

David Carr, “When a TV Talking Head Becomes a Talking Body,” New York Times, November 25, 2004, accessed June 1, 2011, http://www.nytimes.com/2004/11/25/ arts/television/25tube.html?_r=1.

David Carr, “When a TV Talking Head Becomes a Talking Body,” New York Times, November 25, 2004, accessed June 1, 2011, http://www.nytimes.com/2004/11/25/ arts/television/25tube.html?_r=1.

David Carr, “When a TV Talking Head Becomes a Talking Body,” New York Times, November 25, 2004, accessed June 1, 2011, http://www.nytimes.com/2004/11/25/ arts/television/25tube.html?_r=1.

Joy Chen, “Should You Have Sex With Your Boss to Get Ahead?,” Huffington Post, May 18, 2010, accessed June 1, 2011, http://www.huffingtonpost.com/joy-chen/ should-you-have-sex-with_b_580512.html.

“Facts about Sexual Harassment,” U.S. Equal Employment Opportunity Commission, last modified June 27, 2002, accessed July 1, 2011, http://www.eeoc.gov/facts/ fs-sex.html.

“Facts about Sexual Harassment,” U.S. Equal Employment Opportunity Commission, last modified June 27, 2002, accessed July 1, 2011, http://www.eeoc.gov/facts/ fs-sex.html.

Jennifer Zimbroff, “Cultural Differences in Perceptions of and Responses to Sexual Harassment,” Duke Journal of Gender Law and Policy (2007): 1311, accessed June 1, 2011, http://www.law.duke.edu/shell/cite.pl?14+Duke+J.+Gender+L.+&+ Pol%27y+1311; E. R DeSouza and C. S. Hutz, “Reactions to Refusals of Sexual Ad- vances among U.S. and Brazilian Men and Women,” Sex Roles 34, nos. 7–8 (1996): 549–65.

Eros R. DeSouza, “Gender Differences in the Interpretation of Social-Sexual Behavior: A Cross-Cultural Perspective on Sexual Harassment,” Journal of Cross-Cultural Psycho- logy, September 1, 1997.

Amy Winehouse, “Rehab,” Back to Black (Island Records, 2010), audio CD.

“Thirty Years of America’s Drug War: A Chronology,” PBS, Frontline, accessed June 1, 2011, http://www.pbs.org/wgbh/pages/frontline/shows/drugs/cron/.

Craig Zwerling, James Ryan, and Endel John Orav, “The Efficacy of Preemployment Drug Screening for Marijuana and Cocaine in Predicting Employment Outcome,” Journal of the American Medical Association 264, no. 20 (1990): 2639–643, doi:10.1001/ jama.1990.03450200047029. Study quoted in William Shaw, Moral Issues in Business, 10th ed. (Belmont: Thomson Higher Education, 2007), 335.

Carl Elliott, “In Defense of the Beta Blocker,” Atlantic, August 2008, accessed June 1, 2011, http://www.theatlantic.com/magazine/archive/2008/08/in-defense-of- the-beta-blocker/6961/.

Keith Ferrazzi, “10 Tips to Banish Your Public Speaking Fear for Good,” Keith Ferrazzi: Business is Human. Relationships Power Growth (blog), August 26, 2009, accessed June

1, 2011, http://www.keithferrazzi.com/personal-branding/10-tips-to-banish- your-public-speaking-fear-for-good/.

“Our Mission Statement,” PETA (People for the Ethical Treatment of Animals), About, accessed June 1, 2011, http://www.peta.org/about/index.asp.

PETA (People for the Ethical Treatment of Animals) home page, accessed June 1, 2011, http://www.peta.org. Screenshot of PETA homepage featuring Alicia Silver- stone from Business Ethics Workshop, http://businessethicsworkshop.com/ Chapter_11/peta.html.

“I am an Actor and I am a Vegetarian: Now Featuring Alicia Silverstone,” PETA (People for the Ethical Treatment of Animals), Vegetarian Testimonials, accessed June 1, 2011, http://veggietestimonial.peta.org/ psa.aspx?CID=8ce2420c-021c-49bc-91c5-b02a8775e2a2.

Chourok C, “My boss wants to sleep with me?,” Yahoo! Answers, accessed June 1, 2011, http://answers.yahoo.com/question/index?qid=20090419030102AAbYEDf.

Chourok C, “My boss wants to sleep with me?,” Yahoo! Answers, accessed June 1, 2011, http://answers.yahoo.com/question/index?qid=20090419030102AAbYEDf.

aznelephant5, comment on Chourok C, “My boss wants to sleep with me?,” Yahoo! Answers, accessed June 1, 2011, http://answers.yahoo.com/question/ index?qid=20090419030102AAbYEDf.

Srta. Argentina, comment on Chourok C, “My boss wants to sleep with me?,” Yahoo! Answers, accessed June 1, 2011, http://answers.yahoo.com/question/ index?qid=20090419030102AAbYEDf.

Skater Boi, comment on Chourok C, “My boss wants to sleep with me?,” Yahoo! An- swers, accessed June 1, 2011, http://answers.yahoo.com/question/ index?qid=20090419030102AAbYEDf.

Adrian Blomfield, “Sexual Harassment Okay as It Ensures Humans Breed, Russian Judge Rules,” Telegraph, July 29, 2008, accessed June 1, 2011, http://www.telegraph.co.uk/news/worldnews/europe/russia/2470310/ Sexual-harrassment-okay-as-it-ensures-humans-breed-Russian-judge-rules.html.

Adrian Blomfield, “Sexual Harassment Okay as It Ensures Humans Breed, Russian Judge Rules,” Telegraph, July 29, 2008, accessed June 1, 2011, http://www.telegraph.co.uk/news/worldnews/europe/russia/2470310/ Sexual-harrassment-okay-as-it-ensures-humans-breed-Russian-judge-rules.html.

Markus Mobius and Tanya Rosenblat, “Why Beauty Matters,” June 24, 2005, accessed June 1, 2011, http://citeseerx.ist.psu.edu/viewdoc/download?doi= 10.1.1.118.3553&rep=rep1&type=pdf.

mmafan, comment on Isgchas, “It sounds like working for Coke is bad all over the country. Does anybody work for a union shop? Is that any better?,” Indeed, accessed June 1, 2011, http://www.indeed.com/forum/cmp/Coca–Cola/get-job-at-Coca-Cola/ t10481/p2.

Kalakala, “LSD and 60’s Music: What We Owe to It. Part 1,” Ultimate-Guitar.com, August 12, 2006, accessed June 1, 2011, http://www.ultimate-guitar.com/columns/ junkyard/lsd_and_60s_music_what_we_owe_to_it_part_1.html.

CHAPTER 11 THE AROUSED OFFICE: SEX AND DRUGS AT WORK 291

292 THE BUSINESS ETHICS WORKSHOP

C H A P T E R 1 2 The Selling Office: Advertising and Consumer Protection CHAPTER OVERVIEW Chapter 12 considers the ethics of selling by examining advertising, and the ethics of buying by examining concep-

tions of the consumer.

1. TWO KINDS OF ADVERTISING

L E A R N I N G O B J E C T I V E S

1. Define and characterize informational advertising. 2. Define and characterize branding advertising.

1.1 Old Spice One reason guys like to have the controller when couples are watching TV is so they can flip the chan- nel fast when ads like this come on:

Viewed from the waist up, you see a perfectly bodied man wrapped in a low-slung towel. With gleaming eyes locked on the camera he intones, “Hello, ladies, look at your man, now back to me, now back at your man, now back to me.” While guys at home cringe, he comes to an indisputable conclusion, “Sadly, he isn’t me.” After letting the reality sink in, he soothes his female viewers with the information that “He could at least smell like me if he switched to Old Spice body wash.” Next, he asks us to “Look down,” and while everyone’s eyes drop to his towel, some green screen magic allows him to seamlessly appear on a romantic sailboat in the Caribbean. His hand overflows with diamonds, then a bottle of Old Spice arises along with them, and we learn that, “Anything is possible when your man smells like Old Spice.”

informational advertising

Commercials and advertisements presenting facts to influence consumers.

transactional advertising

Advertising directly about the exchange of money for a good or service.

brand

In the field of marketing, the consumer disposition toward a specific good or service.

Video Clip

Old Spice: The Man Your Man Could Smell Like

Advertising is about enticing consumers. It comes in many forms, but the two central strategies are (1) informational and (2) branding.

1.2 Ads: Information and Branding There are more and less sophisticated ways of enticing consumers. At the lowest level, there are product-touting ads and comparisons giving straight information. When Old Spice set aside some money to sell their body wash, they could have gone that route, they could’ve dabbed some product on a shirt and asked random women to stop, take a sniff, and report on the scent. Then magazine spreads could be produced announcing that “three out of four women like the Old Spice scent!” A bit more ag- gressively, women could be given a blind sniff test featuring Old Spice and Axe products, or Old Spice and some “leading brand,” one probably chosen because it fares particularly poorly in the comparison test. In any of its forms, this is informational advertising. It presents facts and hopes that reasonable consumers buying body wash will choose Old Spice.

Other kinds of informational advertising include price comparisons (Old Spice costs less than Axe) and quality comparisons (the Old Spice scent lingers eight hours after showering, and Axe is gone after only six). Naturally, different kinds of products will lend themselves to different kinds of factual and informational claims. Sometimes, finally, this kind of advertising is called transactional because it’s directly about the exchange of money for a good or service.

Moving toward more sophisticated—or at least less rational and direct—advertising, there’s brand- ing, which is the attempt to convert a product into a brand. In the advertising and marketing world, the word brand has a very specific meaning. It’s not the name of the company making the product, not the words Old Spice or Kleenex. Instead, a brand is a product or company’s reputation; it’s what you think of when you hear the name and it’s the feelings (good or bad) accompanying the name. Technically, a brand is what a product or company is left with when you take everything away. Exemplifying this in the case of Old Spice, imagine that tomorrow all their production factories burn down, their ware- houses flood, and their merchandise sells out at every store. Basically, the company has nothing left, no factories to make product, no stock to ship out, and no items left to sell on any shelf. Now, if you were a wealthy investor, would you buy this company that has nothing? You might.

You might because it still has its brand, it still has a reputation in people’s minds, and that can be worth quite a bit. Frequently, when we visit a store and stand in front of shelves packed with different versions of a single kind of item, we don’t have time or the patience to carefully go through and com- pare price per ounce or to Tweet questions to friends about what they recommend. We choose one body wash—or one style of underwear or Eveready batteries instead of Duracell—because of an idea about that product planted in our mind. Maybe we don’t know exactly where the idea came from, or exactly what it is, but it’s there and guides us to one choice instead of another. It makes a product seem like it’s our kind of product (if it’s the one we end up buying) or not our kind of product.

The Old Spice commercial is an exercise in branding. It’s funny, sexy, embarrassing, and extremely sophisticated. Looking at the commercial, the first question to ask is “in the most literal terms, what’s the message?” Is it that Old Spice is a good value? No, there’s no talk about price. Is it that Old Spice smells good? No, the only claim is that it can make you smell like an attractive actor. Is it that the actor (and former pro football player) Isaiah Mustafa uses Old Spice? No, he says he does, but that’s not the

View the video online at: http://www.youtube.com/v/owGykVbfgUE

294 THE BUSINESS ETHICS WORKSHOP

message. If anything, his message to potential consumers is that, if he wanted to, he could steal their girlfriends. This is not the kind of information that wins market share.

Fortunately for Old Spice, branding isn’t about facts or truths; it’s about producing an attitude and connecting with a specific sense of humor and outlook on life. Like a style of clothes or a preference for a certain kind of music, Old Spice is conveying a personality that you appreciate and like or, just as eas- ily, dislike. That’s why the whole commercial comes off as a kind of joke about a certain vision of at- traction and romance and sex. Do you enjoy the joke? If you don’t, then Old Spice is going to have to find a different way to get into your (or your boyfriend’s) wallet. If you do like it, if the whole thing seems zany and funny and you wouldn’t mind pulling it up on YouTube to watch again, then you’ve been branded. Old Spice has found a way to get past all the defenses we usually set up when we see ad- vertising, all the skepticism and cynicism, and gotten us to feel like we’re part of something that in- cludes that company’s products.

In broad strokes, finally, there are two kinds of advertising, two strategies for influencing con- sumption choices. One works by appealing to facts and provides information; the other appeals to emotions and creates a lifestyle. Both kinds of advertising raise ethical questions.

1. Informational ads provoke questions about truth and lies. 2. Branding efforts provoke questions about the relation between our products and who we are as

individuals and a culture.

K E Y T A K E A W A Y S

< Informational advertising employs facts to persuade consumers.

< Branding advertising attempts to attach a personality and reputation to a product.

R E V I E W Q U E S T I O N S

1. Can you think of an example of an informational ad? What information is provided, and how does it persuade consumers?

2. Can you think of an example of a branding ad? What personality and attitude are attached to the product? How might those characteristics persuade consumers?

2. DO ADS NEED TO TELL THE TRUTH?

L E A R N I N G O B J E C T I V E S

1. Delineate different types and degrees of deceitful advertising. 2. Discuss legal and regulatory responses to deceitful advertising. 3. Map the ethical issues surrounding deceptive ads.

2.1 Types of Deceitful Advertising An initial way to distinguish informational advertising from branding is by asking whether consumers are supposed to ask whether the claims are true. In the case of the Old Spice body wash TV spot, there’s no question. The actor asserts that “anything is possible with Old Spice” as diamonds flow magically from his hands. But no one would buy the product expecting to receive diamonds. They wouldn’t be- cause branding ads are neither true nor false. Like movies, you enjoy them (or you don’t) without wor- rying about whether it could really happen. Informational ads, on the other hand, derive their power from selling consumers hard facts. When the ad claims the product costs less than similar offerings from rivals, the first question is “really?” When the answer is “no,” the advertising is deceitful.

There are four ways that informational advertising can be deceitful:

CHAPTER 12 THE SELLING OFFICE: ADVERTISING AND CONSUMER PROTECTION 295

false claims

A kind of deceitful advertising where claims made are directly false.

concealed facts

A kind of deceitful advertising where claims made aren’t directly false, but pertinent information is intentionally left out.

ambiguous claims

A kind of deceitful advertising where claims made aren’t directly false, but true information is used or exaggerated misleadingly.

puffery

A technical term in advertising signifying expressed views that are so clearly subjective exaggerations or product slogans that no reasonable person would take them literally.

Federal Trade Commission (FTC)

An agency of the federal government charged with investigating and preventing unfair and deceptive marketing practices.

reasonable consumer standard

A presumption that protections against deceitful advertising should only be extended to cover marketing efforts that would significantly mislead a thoughtful, moderately experienced consumer.

1. False claims directly misrepresent the facts. For example, an Old Spice body wash ad could announce that it costs less per ounce than Axe. When you go to the store, however, the opposite is true. It may be that the manufacturer’s suggested retail price is less, or Axe is on a special sale, but if the ad says Old Spice is cheaper and it’s not, that’s a false claim.

2. Claims that conceal facts are more common than directly false ones because they’re not flatly untrue and so can’t be easily disproven. A body wash, for example, may conveniently leave out the fact that chemical scents frequently react differently with different skin types and body temperatures, meaning a product may smell great on one man but come off as nauseating when used by most others. Another set of examples surround the infamous fine print on contracts. Every day, someone somewhere receives an offer for a free issue of a magazine and sends the business reply card in. It’s not until a few months later, however, that they realize that getting the free one also committed them to buying a year’s worth. Another example of a concealed fact is a juice made from “natural ingredients,” and it turns out the natural ingredient is sugar, which is natural, but not the fruit juice from real oranges you were expecting.

3. Ambiguous claims resemble concealed facts in not being directly untrue. Where claims that conceal facts manipulate consumers by leaving something out, ambiguous claims mislead by putting too much in. For example, a body wash may announce that it “kills the smelly bacteria that women hate most,” and that may be true, but the implication that only Old Spice does that is misleading because all soaps and washes wipe out some bacteria. Just water washes a good bit away. Similarly, Viagra announces that before using the product, men should check with their doctor to “ensure that you are healthy enough to engage in sexual activity.” The misleading idea is that the rock and rolling will be so intense it could be life threatening. The truth is that the drug itself may be dangerous for the unhealthy. Finally, cigarette companies use a similar strategy when they advertise light cigarettes as (truly) containing less cancer-causing tar, but they leave out the fact that the lower nicotine levels cause many smokers to light up more often and so take in as much, or even more, than they otherwise would have. In every case, the ad’s claim is technically true, but it leads consumers toward possibly false assumptions that just happen to make the product more attractive.

4. Puffery is a technical term in the advertising world. It signifies expressed views that are clearly subjective exaggerations or product slogans, and not meant to be taken literally. In the Old Spice ad, the actor’s claim that “anything is possible with Old Spice” is actually an ironic joke about puffery: the ad is poking fun at those other personal care products that in essence claim the women (or men) will come running. Here are two standard examples of puffery: Budweiser is “The King of Beers” and Coke is “The Real Thing.” More generally, any product labeled “The Finest,” and all services that announce they “Can’t be beat!” are engaging in the practice. Of course these kinds of slogans can be harmless with respect to their violation of strict truth telling, but they do place a burden on consumers to be wary.

Deceitful advertising, finally, is not the same as false advertising. All false ads are also deceitful, but there are many ways of being deceitful that don’t require directly false claims.

2.2 Legal Responses to Deceptive Advertising Created in the early 1900s, the Federal Trade Commission (FTC) was originally tasked with enfor- cing antitrust laws. With time, its responsibilities have expanded to include consumer protection in the area of marketing and advertising. Today, many legal conflicts over truth and sales run through its offices.

The act authorizing the FTC to begin regulating advertising declares that “unfair and deceptive practices” are illegal, and the agency is charged with the responsibility to investigate and prevent them.[1] In judging what counts as deceptive, two models are frequently used. The reasonable con- sumer standard is the looser of the two. It presumes that protections should only be extended to cov- er advertising that would significantly mislead a thoughtful, moderately experienced consumer. One advantage of this stance is that it allows the FTC to focus on the truly egregious cases of misleading ad- vertising, and also on those products that most seriously affect individual welfare. Very close attention is paid to advertising about things we eat and drink, while fewer resources are dedicated to chasing down garden-variety rip-offs that most consumers see through and avoid.

One borderline case is the FTC v. Cyberspace.com. In that case, and according to their press re- lease, the FTC charged that the defendants

296 THE BUSINESS ETHICS WORKSHOP

ignorant consumer standard

A presumption that protections against deceitful advertising should be extended to cover marketing efforts that would significantly mislead any consumer, including those much less sophisticated or experienced than typical buyers.

engaged in an illegal scheme to deceive consumers by mailing $3.50 “rebate” checks to millions of small businesses and consumers. The check came with an attached form that looked like an invoice and used terms like “reference number,” and “discount taken,” making it look like there was a previous business relationship. By cashing the checks, the FTC alleged that many small businesses and consumers unknowingly agreed to allow the defendants to become their Internet Service Provider. After the checks were cashed, the defendants started placing monthly charges of $19.95 to $29.95 on the consumers’ telephone bills. According to the FTC, the defendants then made it very difficult to cancel future monthly charges and receive refunds.[2]

The judge sided with the FTC. Whether or not these businesspeople should have seen through the free-money scam and thrown

the “check” in the trash, it’s certain that the FTC should have stepped in under the ignorant con- sumer standard. Within this framework—which is much stricter than the reasonable consumer ver- sion—consumers are protected even from those scams and offers that most people recognize as mis- leading. One point to make is that the “ignorant consumer” isn’t synonymous with dumb. Though the category does catch some people who probably should’ve tried a bit harder in school, other ignorant consumers may include immigrants who have little experience with American advertising practices and customs. The elderly too may fall into this category, as might people in situations of extreme or desperate need. One example would be late-night TV commercials appealing to people in deep debt. Some ads promise that loan consolidation will lower their overall debt. Others imply that filing for bankruptcy will virtually magically allow a start-over from scratch. Both claims are false, but when creditors are calling and threatening to take your home and your car, even the most reasonable people may find themselves vulnerable to believing things they shouldn’t because they want to believe so desperately.

The federal government, finally, through the FTC has the power to step in and protect these con- sumers. Strictly from a practical point of view, however, their resources are limited. The task of chasing down every ad that might confuse or take advantage of someone is infinite. That factor, along with good faith disagreements about the extent to which companies should be able to shine a positive light on their goods and services, means (1) the ignorant consumer standard will be applied only sparingly by government regulators, and (2) borderline cases of advertising deceit will be with us for the foresee- able future.

2.3 The Ethics of Deceitful Advertising One way to enter the ethical debate about dubious product claims is by framing the subject as a conflict of rights. On one side, producers have a right to talk sunnily about what they’re selling: they’re free to accentuate the positives and persuade consumers to reach for their credit card. On the other side, con- sumers have a right to know what it is that they’re buying. In some fields, these rights can coexist to some significant extent. For example, with respect to food and drink, labeling standards imposed on producers can allow consumers to literally see what’s in their prospective purchase. Given the transpar- ency requirement, companies can make a strong argument that they should be allowed to advocate their products with only minimal control because consumers are free to check exactly what it is they’re buying.

Even these clear cases can become blurry, however, since some companies try to stretch labeling requirements to the breaking point to suit their purposes. One example comes from breakfast cereal boxes. On the side, producers are required to list their product’s ingredients from high to low. At the top you expect to see ingredients including flour or similar, as quite a bit of it goes into most dry cer- eals. At the bottom, there may be some minor items added to provide a bit of flare to the taste.

One specific ingredient many parents worry about is sugar: they don’t want to send their little ones off to school on a massive sugar high. So what do manufacturers do? They comply with the letter of the regulation, but break the spirit by counting sugar under diverse names and so break up its real weight in the product. Here are the first few lines of the ingredients list from Trix cereal:

Corn (Whole Grain Corn, Flour, Meal), Sugar, Corn Syrup, Modified Corn Starch, Canola and/or Rice Bran Oil, Corn Starch, Salt, Gum Arabic, Calcium Carbonate, High Fructose Corn Syrup, Trisodium Phosphate, Red 40, Yellow 6, Blue 1.

CHAPTER 12 THE SELLING OFFICE: ADVERTISING AND CONSUMER PROTECTION 297

Sugar is sugar, corn syrup has a lot of sugar, high fructose corn syrup has even more sugar. We’d have to get a chemist to tote up the final results, but it’s clear that a reasonable consumer should figure this is a sugar bomb. Is it fair, though, to assume that an immigrant mother—or any mother not well versed in sugar’s various forms—is going to stop and do (or be able to do) a comprehensive ingredient investigation? The question goes double after remembering that the first image consumers see is the product’s advertising on the box featuring a child-friendly bunny.

More generally, in terms of a pure rights-based argument, it’s difficult to know where the line should get drawn between the right of manufacturers to sell, and the right of consumers to know what they’re buying. The arguments for pushing the line toward the consumer and thereby allowing manu- facturers wide latitude to make their claims include the following:

1. Free speech. The right for people to say whatever they want doesn’t get suspended because someone is trying to sell a product. Further, on their side, consumers are completely free to buy whatever they want, they’re free to listen to pitches from competing merchants, and they can consult the Consumer Reports web page and talk to friends. Ours is, after all, a free market, and advertisers participate in it. The right to make whatever advertising claims one wishes is justified on principle, on the ideal of a liberal (in the sense of free) economic world.

2. Marketers have a moral responsibility to do everything they possibly can to sell because they’re obligated to serve their employers’ interest, which is to make money, presumably. In this case, deceitful advertising may be morally objectionable but less so than failing to turn the highest profit possible.

3. Within the context of an open market economy, one way to help it function efficiently, one way to get products and services sent where they’re supposed to go in a way that benefits everyone, is by maximizing the amount of information consumers have before they purchase. And one way to maximize information, it could be argued, is by letting competing sellers advertise freely against each other. They can say whatever they like about themselves and point out exaggerations and untruths in the claims of competitors. This is similar to what happens in courtrooms where plaintiffs are allowed to say more or less whatever they want and defendants can do that too. Both sides cross-examine each other, and in the end, the jury weighs through it all and decides guilt or innocence. Returning to the economic realm, the argument is that the best way to get the most information possible out to consumers is by allowing a vibrant advertising world to flourish without restriction.

On the other side, distinct arguments are frequently proposed to defend the position that sellers should operate within tight restrictions when advertising the virtues of their goods and services. The consumer should be vigorously shielded, the reasoning goes, from claims that could be deceptive. Arguments in- clude the following:

1. Consumers have a fundamental ethical right to know what they’re buying, and even mildly ambiguous marketing techniques interfere with that right. If a box of breakfast cereal is marketed with a harmless and helpful bunny, then the ingredients of Trix cereal better be harmless and helpful (and not sugar bombs). Everyone agrees, finally, that advertisers have a right to free speech, but that right stops when it conflicts with consumers’ freedom to purchase what they really want.

2. Advertisers are just like everyone else insofar as they’re bound by an ethical duty to tell the truth. That duty trumps their obligation to sell products and help companies make profits.

3. Both advertisers and the manufacturing companies are duty bound to treat everyone including consumers as ends and not as means. The basic ethical principle here is that no one should be treated as an instrument, as a way to get something else. There’s no problem with advertising a product and allowing consumers to decide whether they want it, but when the advertising becomes deceptive, consumers are no longer being respected as dignified human beings; they’re being treated as simply means to ends, as ways the company makes money. Consumers become, in a sense, indistinguishable from the machines in the factory, nothing more than cogs in the process of making owners wealthy.

4. Purchasing a product is also the signing of an implicit contract between producer and consumer. The consumer gives good money and expects a good product, one in line with the expectations raised by advertising. Just as companies are right to apply drug tests to workers because those companies have a right to a full day’s good labor for a full day’s pay, so too when the consumer pays full price for a product it should fully meet expectations.

5. Though the idea of allowing marketers to say whatever they want may sound good because it allows consumers to maximize information about the products that are out there, the theory only works if consumers have massive amounts of time to study the messages from every producer before making every purchase. In reality, no one has that much time and, as a result, advertisers must be limited to making claims that are clearly true.

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consumerism

The identification of ourselves with the products we buy and an accompanying need to buy in order to exist.

Conclusion. There’s a lot of space between truth and lies in advertising; there are many ways to not quite tell the whole truth. Both legally and ethically, the limits of the acceptable can be blurry.

K E Y T A K E A W A Y S

< Deceitful advertising occurs along a range from exaggerations to direct falsehoods.

< Legal responses to deceitful advertising may be organized through the FTC.

< The degree of consumer legal protection depends on premises about the marketplace sophistication of the consumer.

< Ethical debates concerning deceitful advertising pit the rights of marketers to sell against the rights of consumers to know what they are purchasing.

R E V I E W Q U E S T I O N S

1. What’s the difference between deceitful advertising and direct falsehoods?

2. Define the reasonable consumer standard for consumer protection. How is it different from the ignorant consumer standard?

3. What are two arguments in favor of granting marketers wide latitude to promote their products?

4. What are two arguments in favor of forcing marketers to stay very close to the pure truth when promoting their products?

3. WE BUY, THEREFORE WE ARE: CONSUMERISM AND ADVERTISING

L E A R N I N G O B J E C T I V E S

1. Define consumerism. 2. Discuss the power and problems surrounding advertising that creates desires. 3. Consider special issues surrounding advertising and children. 4. Investigate the penetration of advertising in life.

3.1 What Is Consumerism? The word consumerism is associated with a wide range of ideas and thinkers, ranging from American economist John Kenneth Galbraith and his book The Affluent Society to the French postmodern philo- sopher Jean Baudrillard. While definitions of the word and responses to it vary, consumerism in this text is defined in two parts:

1. We identify ourselves with the products we buy. Consumerism goes beyond the idea that our brands (whether we wear Nike shoes or TOMS shoes, whether we drive a Dodge Charger or a Toyota Prius) are symbols of who we are. Consumerism means our products aren’t just things we wear to make statements. They are us; they incarnate the way we think and act.

2. If we are what we buy, then we need to buy in order to be. Purchasing consumer items, in other words, isn’t something we do to dispatch with necessities so that we can get on with the real concerns of our lives—things like falling in love; starting a family; and finding a satisfying job, good friends, and fulfilling pastimes. Instead, buying becomes the way we do all those things. The consumption of goods doesn’t just dominate our lives; it’s what we do to live.

The subject of consumerism goes beyond business ethics to include every aspect of economic life and then further to cultural studies, political science, and philosophy. Staying within business ethics, however, and specifically with advertising, the subject of consumerism provokes the following questions:

< Does advertising create desires (and is there anything wrong with that)?

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< Do advertisers have a responsibility to restrain their power? < Should there be different rules for advertising aimed at children? < Is advertising too intrusive in our lives?

3.2 Does Advertising Create Desires (and Is There Anything Wrong with That)? Our society is affluent. With the exception of marginal cases, all Americans today eat better, enjoy more effective shelter from winter cold and summer heat, are healthier, and live longer than, say, the king of France in 1750. In fact, necessity in the sense of basic life needs hardly exists. We struggle hero- ically to afford a better car than our neighbor, to have a bigger home than our high-school classmates, to be thin and pay the doctor for a perfectly shaped nose, and so on, but no one worries about famine. Our economic struggles aren’t about putting food on the table; they’re about eating in the most desir- able restaurant.

How do we decide, however, what we want—and even what we want desperately—when we don’t truly need anything anymore? One answer is that we create needs for ourselves. All of us have had this experience. For our entire lives we lived without iPhones (or even without cell phones), but now, some- how, getting halfway to work or campus and discovering we left our phone at home causes a nervous breakdown.

Advertising plays a role in this need creation. Take the Old Spice body wash ad. Body wash as a personal grooming product was virtually unheard of in the United States until only a few years ago. More, as a product with specific characteristics, it’s hard to see how it marks an advance over old-fash- ioned soap. This absence of obvious, practical worth at least partially explains why the Old Spice ad provides very little information about the product and nothing by way of comparison with other, simil- ar options (like soap). Still, the Old Spice body wash is a hit. The exact techniques the ad uses are a matter for psychologists, but as the sales numbers show, the thirty-second reel first shown during the Super Bowl has herded a lot of guys into the idea that they need to have it.[3]

Is there anything wrong with that? One objection starts by pointing out that corporations produ- cing these goods and selling them with slick ad campaigns aren’t satisfying consumer needs; they’re try- ing to change who consumers are by making them need new things. Instead of fabricating products con- sumers want, corporations now fabricate consumers to want their products, and that possibly violates the demand that we respect the dignity and autonomy of others. The principle, for example, that we treat others as ends and not means is clearly transgressed by any advertising that creates needs. First, guys out in the world aren’t being respected as “ends,” as individuals worthy of respect when corpora- tions stop producing their required products better or more cheaply. Second, guys out in the word are being treated as means—as simple instruments of the corporations’ projects—when their desires are manipulated and used to satisfy the corporations’ desire to make money.

Another argument against this kind of desire-creating advertising starts from a rights approach. According to the theory that freedom is the highest good, we’re all licensed to do whatever we want as long as our acts don’t curtail the freedom of others. The argument could be made that using sophistic- ated advertising campaigns to manipulate what people want is, in effect, curtailing their freedom at the most fundamental level. Old Spice’s advertising strategy is enslaving people to desires that they didn’t freely choose.

A final argument against need creation with advertising is the broad utilitarian worry that con- sumers are being converted into chronically, even permanently unhappy people because they have no way to actually satisfy their desires. If you work to attain something you’ve been told you’re supposed to want, and the second you get it some new company enters with the news that now there’s something else you need, the emotional condition of not being satisfied threatens to become permanent. Like mice trapped on a running wheel, consumers are caught chasing after a durable satisfaction they can’t ever reach.

On the other side of the argument, defenders and advocates of desire-creating advertisements like the one Old Spice presented claim (correctly) that their announcements aren’t violating the most tradi- tional and fundamental marketing duty, which is to tell the truth. The Old Spice ad, in fact, doesn’t really say anything that’s either true or false. Given that, given that there’s no attempt to mislead, the company is perfectly within its rights to provide visions of new kinds of lives for consumers to con- sider, accept or reject, buy or pass over.

Stronger, advocates claim that consumers are adults and attempts to shield them from ads like those Old Spice produced don’t protect their identity and dignity; instead, they deny consumers op- tions. Consequently, ethical claims that ads aiming to generate new desires should be constrained actu- ally violate consumer dignity by treating them like children. We should all be free, the argument con- cludes, to redefine and remake ourselves and our desires in as many ways as possible. By offering op- tions, advertising is expanding our freedom to create and live new, unforeseen lives.

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viral advertising

The exploitation of consumers to do a company’s promotional work.

knowledge and resource exploitation

The employment of specialized marketing knowledge and the use of the vast financial resources to condition consumers.

economic asymmetry

In the field of marketing, a large imbalance in monetary power and commercial knowledge favoring professional advertisers when weighed against consumers.

3.3 Do Advertisers Have a Responsibility to Restrain Their Power? The Old Spice ad didn’t end after its thirty seconds of fame on the Super Bowl broadcast. The actor Isaiah Mustafa went on to became a Twitter sensation. By promising to respond to questions tweeted his way, he effectively launched a second phase of the marketing effort, one designed to stretch out the idea that body wash is big and important: it’s what people are talking about, and if you don’t know about it and what’s going on, you’re out of the loop, not relevant. The tone of the invitation to Twitter users to get involved stayed true to the original commercial. Mustafa asked people to “look for my in- credibly manly and witty and amazing responses” to their questions.[4]

On YouTube, Mustafa’s status went to instant legend: not only has his commercial been viewed about 20 million times (by people who actually want to watch and pay attention and at zero cost to Old Spice), there’s also a long list of copycat videos, derivative videos, spoof videos, and on and on. The depth of the advertising campaign is now virtually infinite. You could pass years watching and listening and reading the social media generated and inspired by the original commercial.

All that is advertising. It’s not paid, it’s not exactly planned, but it is part of the general idea. When Old Spice spent big money to get a Super Bowl slot for their ad, they weren’t only trying to reach a large audience; they were also hoping to do exactly what they did: set off a firestorm of attention and social media buzz.

Called viral advertising, this consumer-involved marketing strategy drives even further from tra- ditional, informational advertising than the activity of branding. Where branding attempts to attach an attitude and reputation to a product or company independent of specific, factual characteristics, viral ads attempt to involve consumers and exploit them to do the company’s promotional work. When viral advertising is working, the activity of branding is being carried out for free by the very people the ad- vertising is meant to affect. In a certain sense, consumers are advertising to themselves. Of course, con- sumers aren’t rushing to donate their energy and time to a giant corporation; they need to be enticed and teased. The Super Bowl ad with its irresistible humor and sex-driven come-on does that—it pro- vokes consumers to get involved.

Viral ads—and the techniques of public enticement making them spread contagiously—come in many forms. One ethical discussion, however, surrounding nearly all viral advertising can be framed as a discussion about knowledge and resource exploitation. Two critical factors enabled Old Spice, along with its advertising agency Wieden+Kennedy, to generate so much volunteer help in their en- deavor to get the body wash buzz going:

1. Knowledge of consumer behavior 2. Tremendous resources—especially money and creative advertising talent—that allowed them to

act on their knowledge Compared with the typical person watching a TV commercial, the raw power of Old Spice is nearly im- measurable. When they aim their piles of money and sharp advertising experts toward specific con- sumers, consumers are overwhelmed. Without the time required to learn all the skills and strategies employed by today’s advertisers, they literally don’t even know what’s hitting them. From that fact, this ethical question arises: Don’t today’s sophisticated marketers have a responsibility to inform consumers of what they’re up to so that potential purchasers can at least begin to defend themselves?

Making the last point stronger, isn’t the economic asymmetry—the huge imbalance in monetary power and commercial knowledge favoring today’s professional advertisers—actually an obligation to restraint, a responsibility to not employ their strongest efforts given how comparatively weak and de- fenseless individual consumers are? The “yes” answer rests on the duty of fairness—that is, that we treat equals equally and unequals unequally. In this case, the duty applies to companies just as it does to people. Frequently people say to large, muscle-bound characters caught up in a conflict with someone smaller, “Go pick on someone your own size.” It’s simply unfair to challenge another who really has no chance. This duty comes forward very graphically on a video snippet from MTV’s Jersey Shore when a thin girl attacks the physically impressive Ronnie. He just shoves her aside. When her boyfriend, however, who’s about Ronnie’s size and age, shows up and starts swinging, he ends up getting a good thumping. Leaving aside the ethics of fistfights, it doesn’t take profound thought to see that Ronnie un- derstands his superior physical power is also a responsibility when harassed by a comparative weakling to hold himself in check.[5]

While the case of Old Spice and Wieden+Kennedy isn’t quite as transparent as Ronnie on the street, it does obey the same logic: all their power and marketing expertise is both a power over con- sumers and an equally forceful responsibility not to exercise it. Compare that situation with the famous “I’m a Mac, I’m a PC” advertising campaign. No one objects to powerhouse Apple taking some figurat- ive swings at powerhouse Microsoft since that company clearly has the means to defend itself. When a corporation manipulates innocent and relatively powerless individual consumers at home on the sofa, however, it’s difficult to avoid seeing something unfair happening.

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The argument on the other side is that consumers aren’t powerless. There’s no real imbalance of might here because consumers today, armed with their Twitter accounts and Facebook pages, are per- fectly capable of standing up to even the mightiest corporations. Viral messaging, in other words, goes both ways. Old Spice may use it to manipulate men, but individual men are perfectly free and capable of setting up a Facebook group dedicated to recounting how rancid Old Spice products actually are. Beneath this response, there’s the fundamental claim that individuals in the modern world are free and responsible for their own behavior, and if they end up voluntarily advertising for Old Spice and don’t like it, they shouldn’t complain: they should just stop tweeting messages to Isaiah Mustafa.

Further, the proposition that consumers need to be protected from Old Spice is an infringement on the dignity of those who are out in the world buying. Because today’s consumers connected to social media are alert and plugged in, because even a solitary guy in pajamas in his basement running his own YouTube channel or Facebook group can be as influential as any corporation, attempts to shield him are nothing less than disrespectful confinements of his power. Protection, in this case, is just another word for condescension.

3.4 Should There Be Different Rules for Children? The discussion of knowledge and resource exploitation leads naturally to the question about whether children should be subjected to advertising because the knowledge imbalance is so tremendous in this particular case.

According to a letter written by a number of respected psychologists to their own professional as- sociation, children should receive significant shielding from advertising messaging. The first reason is a form of the general concern that advertising is creating desires as opposed to helping consumers make good decisions about satisfying the desires they have: “The whole enterprise of advertising is about cre- ating insecure people who believe they need to buy things to be happy.”[6]

The problem with advertising that creates insecurity is especially pronounced in the case of soci- ety’s youngest members because once that attitude of constant need and consequent unhappiness is bred into these consumers, it’s difficult to see how it will be removed. Since they’ve known nothing else, since they’ve been taught from the very start that the natural condition of existence is to not have the toys and things that are needed, they have no way of escaping into a different (nonconsumerist) way of understanding their reality. Finally, if this entire situation is set inside a utilitarian framework, it’s clear that the ethical verdict will fall somewhere near reprehensible. If, as that ethical theory affirms, moral good is just any action contributing to social welfare and happiness, then advertisements consigning children to lifetime dissatisfaction must be prohibited.

The second part of the psychologists’ argument elaborates on the condition of children as highly vulnerable to commercial message techniques. Children aged three to seven, for example, gravitate to- ward the kind of toys that transform themselves (for example, Transformers). Eight- to twelve-year- olds love to collect things. Armed with these and similar insights about young minds, marketers can exploit children to want just about anything. The virtual defenselessness of children, the point is, can- not be denied.

Still, there is a case for child-directed advertising. It’s that where children are defenseless, parents have a responsibility to step in. First, they can turn off the TV. Second, no young child can buy any- thing. Children depend on money from mom and dad, and to the extent that parents enable children to live their advertising wants, it’s parents who are at fault for any feelings of insecurity and dissatisfaction affecting their kids.

Whether advertising aimed at children is right or wrong, the stakes are certainly high. Children under twelve are spending around $30 billion a year, and teenagers are hitting $100 billion in sales.[7]

3.5 Are Ads Too Intrusive in Our Lives? Another sentence from that letter written by concerned psychologists indicates a distinct area of ethical concern about advertising: “The sheer volume of advertising is growing rapidly and invading new areas of childhood, like our schools.”[8]

It’s not just children in their schools. We all go to concerts at the American Airlines Center, our shirts and shoes are decorated with the Nike swoosh, public parks are sponsored by corporations, the city bus is a moving billboard, the college football championship will be determined at the FedEx Orange Bowl. Every day it’s harder to get away from ads, and each year the promotions and announce- ments push closer to those parts of our lives that are supposed to be free of economic influence. Maybe someday we’ll attend Mass at the Diet Coke Cathedral, weigh guilt and innocence in the Armor All courthouse, elect senators to vote in the Pennzoil chamber.

And maybe that’s OK. The push of advertising into everything is a proxy for a larger question about the difference between business life and life. It could be that, at bottom, there is no difference.

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We are Homo economicus. The antiromanticists were right all along: love can be bought with money, fulfillment is about consuming, and that bumper sticker “He who dies with the most toys wins” is true.

Since serious thought about what really matters in life began in Greece 2,500 years ago, people have promoted the idea that there are more important things than money and consumption. Those usually ill-defined but nonetheless more important things have always explained why most poets, artists, priests, and philosophy professors haven’t had much in the way of bank accounts. Possibly, though, it’s the other way. Maybe it’s not that there are more important things in life that lead some people away from wealth and consumption; maybe it’s that some people who don’t have much money and can’t buy as much as their neighbors explain away their situation by imagining that there are more important things.

Who’s right? The ones who say money and economic life should be limited because the really im- portant things are elsewhere, or the ones who say there are no other things and those who imagine something else are mainly losers? It’s an open question. Whatever the answer, it will go a long way to- ward determining the extent to which we should allow advertising into our lives. If there’s only money and consumption, then it’s difficult to see why the reach of the branding factories and viral marketers should be significantly limited. If, on the other hand, there’s life outside the store, then individuals and societies wanting to preserve that part of themselves may want to constrain advertising or require that it contribute to noneconomic existence.

K E Y T A K E A W A Y S

< Consumerism places our entire life within the context of consumer goods and services.

< Advertising can create desires.

< Advertising creating desires raises questions about whether ads violate consumers’ dignity and rights.

< The knowledge and financial power of companies (and their ad agencies) may also be an obligation for restraint.

< Children are especially vulnerable to sophisticated advertising and may require special protections.

< Discussion of the advertising that creates needs is a proxy for a larger discussion about the role of money and consumption in our lives.

R E V I E W Q U E S T I O N S

1. Put into your own words the definition of consumerism.

2. How can an ad create a desire?

3. Why might an advertiser seek to create a desire?

4. Make the case that ads that create desires violate a consumer’s basic rights.

5. Why might a consumer want advertisers to create desires?

6. What is a viral ad?

7. With reference to the concept of economic asymmetry, why is advertising aimed at children the subject of special concern?

8. Why might an advertising company feel obligated to limit the places in which its work appears in the name of protecting the noneconomic parts of our lives?

9. Why might someone want advertising to be everywhere?

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4. CONSUMERS AND THEIR PROTECTIONS

L E A R N I N G O B J E C T I V E S

1. Delineate the issue of consumer protection from defective goods and services. 2. Outline five conceptions of the consumer. 3. Consider the ethics of consumer protection surrounding each conception of the consumer.

4.1 Google Search: Make Money on the Stock Market One of the top results of a Google search for “make money on the stock market” links you to a page called 2stocktrading.com. It claims, “If you just follow my technique, then I guarantee you will be able to turn $2000 into $1.7 Million in just 1.9 years!”

People turn small amounts into large amounts fast on Wall Street. It happens every day. Many of those people, however, have spent years in school studying economics and business and then decades more studying data and preparing for a speculative opportunity. That studious patience may be a good way to find success, but it isn’t the 2stocktrading.com recommendation. According to them, “You don’t need to spend hours reading charts, doing technical analysis and stuff like that.”

So what do you do to prepare for sudden riches? You’ve got to buy a special book that they sell on the website. Then,

you follow 5 simple steps explained in the book. Within 10 minutes, you have found a stock trade that is bound to make you money in any market condition…Go make coffee. Have a little breakfast. And wait for the market to open…Call your broker to place an order.

That’s it…Your job is done for today.

Trust me.

Of every one hundred people who read the pitch from 2stocktading.com in this business ethics textbook, how many do you think will take a second to check out the site? And of that group, what per- centage will actually spend some time reading through the whole page? And of that group, which per- centage will end up sending in money?

Everybody would like to know the answer to that last question for this reason: everyone has been ripped off, and afterward, everyone has looked at themselves and asked, “Well, was it my fault?” Some- times the answer is disagreeable, and it’s comforting to know that at least some people out there—like the ones sending in money to 2stocktrading—are even more gullible.

The business ethics surrounding the consumer mainly concerns gullibility, mistreatment of the consumer, and responses to the mistreatment. The questions are about how much freedom consumers should have to spend their money and how much responsibility suppliers should take for their goods and services. One way of organizing the answers is by considering five conceptions of the consumer, five ways of arranging the rights and responsibilities surrounding the act of spending money:

1. The wary consumer 2. The contracting consumer 3. The protected consumer 4. The renegade consumer 5. The capable consumer

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caveat emptor

A Latin phrase translating as “let the buyer beware.” As a doctrine, it means the consumer alone is responsible for the quality of the product purchased.

4.2 The Wary Consumer Caveat emptor is Latin; it translates as “Let the buyer beware.” As a doctrine, caveat emptor means the consumer alone is responsible for the quality of the product purchased. If, in other words, you send your money to 2stocktrading.com and you end up losing not only that but also the cash invested in dis- astrous stock choices, that’s your problem. You don’t have any claim against this particular get-rich- quick scheme. And if you don’t like the results, that only means you should have been a more careful consumer.

The doctrine of caveat emptor entered the American legal lexicon in 1817 (Laidlaw v. Organ). Since then, the legal tide has flowed in the other direction: toward consumer protection and the idea that offering a good or service for sale is also, implicitly, the offer of some kind of guarantee. If a product doesn’t do what a reasonable person expects, then there may be room for a legal claim against the seller.

On the ethical front, caveat emptor sits at one extreme of the buyer-seller relation. It’s what you have when you buy a used car marked As Is. Even if it’s a lemon, you’re stuck with it. As far as justify- ing this view of the consumer and mounting an argument that our economic life ought to be organized by the idea that when buyers hand over their money, they get their item and nothing else, there are sev- eral routes that may be followed:

< Caveat emptor maximizes respect for the consumer. By placing all responsibility in the consumer’s hands, a high level of dignity and freedom is invested in those who buy. It’s true that when there’s a rip-off, there’s no recourse, but it’s also true that the consumer is allowed to make decisions based on any criteria he or she sees fit. The case of 2stocktrading.com is a good example. Reading about the scheme, it’s normal to be tempted to say, really, these guys shouldn’t be allowed to advertise their service. What they’re claiming is clearly untrue (if their stock- picking system really worked so well, they’d spend their time picking stocks, not trying to sell other people ideas about how to pick stocks). And it’s true that were consumers banned from sending money in, more than a few would be better off. But do we really want a society like that, one where we don’t get to make our own choices, even if they’re bad ones? A critical component of showing respect for others is allowing them to mess up. It’s worth, the argument closes, allowing those mess ups if what we get back for them is consumers endowed with the dignity of making their own decisions.

< Another argument justifying caveat emptor is that it maximizes a certain kind of economic efficiency. When deals are done, they’re done and everyone moves on. This allows two kinds of savings. First, there are no expensive lawsuits where everyone pays and mainly lawyers walk away with the cash. Second, though it’s impossible to put a number on the cost, it’s certain that a huge amount of resources are devoted in our economy today to warnings and similar that are meant to protect companies against consumer claims of fraud and abuse and lawsuits. Take, for example, the TV ads we see for prescription drugs. Sometimes it seems like half the airtime is devoted to reciting warnings and complications associated with the medication. In a world of pure caveat emptor, those kinds of efforts could be minimized because sellers wouldn’t have to worry so much about getting sued. With respect to ethics, finally, it may be possible to argue here that maximizing economic efficiency is also the best way to maximize a society’s happiness, and if it is, then the doctrine of caveat emptor is sanctioned by utilitarian theory.

On the other side, there are also solid ethical arguments against envisioning consumers as protected only by their own wariness.

< An ethics of care sets the maintenance of a community—of its relationships and unity—as the highest value. If that’s the final definition of good, if what we seek in the business world is smooth and continuing cooperation everywhere along the line from the production to the sale and finally to the use of products, then it’s difficult to see how sellers could wash their hands after a transaction, or why buyers would be restrained from complaining when things don’t work out the way they were supposed to.

< In our society, an ethics based on virtue also stands against the caveat emptor model of consumption. Proponents of virtue ethics typically cite senses of fairness and civility as key components of a good ethical life. If they are, it seems clear that customers who don’t receive what they honestly thought they were getting should be listened to and compensated, not ignored and spurned.

In conclusion, caveat emptor envisions consumers as free and empowers them to do as they wish. However, by freeing sellers to be as unscrupulous as they like, it may create an economic society that seems more savage than civil.

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implicit contract

An unwritten agreement formed between sellers and buyers as a function of their transaction.

implied warranty

What consumers may claim from sellers if the good or service fails to meet expectations, as those expectations are defined by an implicit contract.

4.3 The Contracting Consumer The contractual view of the consumer sees transactions as more than a simple passing of money one way and a good or service the other. The transaction is also the creation of an implicit contract. It’s true that nothing may be written on a piece of paper or signed, but the contract’s terms may nonethe- less be deduced from the transaction itself. In order to begin deducing, the nature of a contractual rela- tionship should first be summarized in general form. Entering into a contract implies the following three requirements:

1. Freedom. Neither party may be forced into the agreement. One of the memorable scenes from the Godfather movies involves the mafia’s attempt to win a movie role for young Frank Sinatra. The Hollywood executive resists the casting, until he wakes up one morning with the severed head of his favorite horse in his bed. A contract is quickly sent out. That’s not a true story, but it’s an example of entering a contract under duress. A more subtle violation of contractual freedom occurs on the 2stocktrading web page. If you scroll to the bottom you find the price of the product is about $200, but if you buy immediately you’re eligible for a half-price discount. The aim here is to limit the consumer’s freedom to think things through before entering into a purchasing contract by forcing a yes-no decision right now.

2. Information. Both buyers and sellers must have reasonably complete knowledge of the agreement they together enter. The issues here range from simple to complicated. If the price, for example, is set in dollars, does that mean US dollars or the Canadian version? More thorny would be the question as to what exactly you receive when you send in your money to 2stocktrading.com. They claim you’ll get the stock-picking secrets, but what exactly does that mean? Is it a textbook in economics, a subscription to the Wall Street Journal, a crystal ball? If you go through the company’s web page carefully, you get the idea that a set of books will be mailed your way, but again, exactly how these books convey secret knowledge is harder to see.

3. Honesty. Both sides have to tell the truth. Consumers who send in checks must have money in their accounts. Sellers who promise stock tips that will make you rich must, in fact, send you good stock tips.

The vision of the consumer as entering a contractual relationship essentially moves ethical questions into the legal realm. What’s morally right or wrong becomes a matter of contract law, and decisions made on the ethical front loosely parallel those that would be taken in the courts.

The ethical work that needs to be done here occurs in the deduction of exactly what terms and clauses make up the implicit contract as it’s implied by the circumstances of the agreement. In the field of law, of course, we know what the contract’s terms are because they’re actually spelled out on a piece of paper. In the case of the contractual view of the consumer, it will be necessary to start with a specific ethical theory, and move from there to the conceiving of an agreement entered into by both sides.

An ethical theory of traditional duties, which values honesty highly, may move all the claims made on the 2stocktrade.com web page directly over to the implicit contract. If, it follows, the people selling the stock-picking service say you’ll get rich in two years by following their recommendations and you follow them and you don’t get rich, the sellers have not fulfilled their contract. Both economically and ethically, they haven’t held up their end of the bargain. At this point, the concept of an implied war- ranty activates. An implied warranty, just like an implicit contract, elaborates what consumers may claim from sellers if the good or service fails to meet expectations. In this case, one where the implicit contract guaranteed wealth, it seems obvious that consumers who don’t make any money should get their original purchase price back. They may also be able to claim that any money lost on the stock market should be refunded because it was invested underneath the assumption that it would produce a gain. At the outside extreme, they might be able to demand the wealth they were supposed to receive for their investments.

Looking at this situation differently—which means using a different ethical theory to produce the terms of an implicit contract between 2stocktrading.com and a consumer—a culturalist ethics may not be quite so stringent. A culturalist ethics accords right and wrong with the habits and customs of a so- ciety. And in America today, there’s a common understanding that in a free market, sellers are some- times going to get a little overenthusiastic about their products. Of course consumers have a right to expect some truth from advertisements, but there’s also an agreement that exaggerations occur. In this case, the implicit contract would require that stock-picking tips actually be delivered, but it might not require that the people who use them actually get rich or make any money at all. If, in other words, reasonable people in our society who read the web page don’t come away believing they’ll really rake in the cash by using the stock-picking techniques, then the implicit contract arising between seller and buyer doesn’t include that guarantee.

Regardless of how the implicit contract—and consequent implied warranty—are construed, there’s a significant disadvantage to this approach: ambiguity. Law firms earn their entire income by disputing what written contracts actually mean in the real world. If even perfectly explicit and signed agreements

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complex transaction

A transaction where the seller is not the fabricator of the good being sold.

manufacturer liability

The consumer right to sue manufacturers for injuries caused by a defective product.

due care

The conception of manufacturers as being in a position to understand the potential dangers of their products and therefore as obligated to take precautions to ensure quality and safety.

strict product liability

The doctrine that manufacturers are legally liable for product defects no matter how much care may have been taken to prevent them.

between buyers and sellers don’t yield easy determinations about the obligations imposed on the two sides, then answering those questions for implicit contracts, ones where nothing is written, is going to be tremendously difficult. The theory of the consumer as entering a contractual relationship with the seller certainly makes sense, but in practice, it may not help resolve problems.

4.4 The Protected Consumer Most economic transactions don’t threaten grave losses even when they go wrong. You buy a half gal- lon of milk at the grocery store, bring it home, and find the package was slightly punctured so the milk is curdled. You buy a pen and no ink flows. You pay for a nice haircut and get butchered. These kinds of economic hiccups occur all the time, and the defects normally don’t matter too much. The defect definitely does matter, however, when you buy a car and a design error causes the gas pedal to get stuck, leading to wild, unbreakable speeding and entire families dying in flaming wrecks. While it’s unclear how many people have been victims of Toyota’s gas pedal manufacturing error, it has become stuck at full acceleration on multiple occasions and has caused real human suffering completely incomparable with the kinds of petty losses typical consumers absorb every day.[9]

Another important aspect of buying a Toyota, or any car, is that it’s a complex transaction. That means there’s a large distance between the individual who actually takes your money, and the people in faraway plants who physically made the car. In the case of 2stocktrading.com, it may well be that the people who invented the stock-picking system get the money directly when you hit the Internet “Buy” button. A car, however, is typically purchased in a dealership from a salesman who may not even know where the car he’s selling is made. Even if he does know, he certainly can’t tell you where all the com- ponents came from. In today’s interconnected world, more and more products are like cars—they’re composed of parts that come from all over the place and then they’re shipped halfway across the coun- try (or the world) for sale by people who have nothing to do with any design or manufacturing flaws.

These two factors—the possibility of severe injury coupled with the difficulty in locating who, ex- actly, is to blame—support the proposal that in some cases ethics may not be enough to protect con- sumers. Legal protections with sharp teeth could work better. These protections generally move along two lines: manufacturer liability and government safety regulation.

Manufacturer liability is the consumer right to sue manufacturers—and not just the local deal- ership with which a sales contract is signed—for injuries caused by a defective product. As for specific types of defects incurring liability suits, there are three:

1. Design defects are errors in the product’s blueprint. The physical manufacturing, in other words, may be perfect, but because the design isn’t, consumers may be harmed.

2. Manufacturing defects are part of the production process. In this case, a product may be generally safe but dangerous in a specific instance when it comes off the assembly line missing a bolt.

3. Instructional defects involve poor or incomplete instructions for a product’s safe use. The product may be designed and built well, but if the instructions tell you it’s OK to use the blow- dryer in the shower, there could be problems.

The legal origin of manufacturer liability is MacPherson v. Buick Motor Company. In that 1916 case, Donald MacPherson was injured when his Buick veered out of control. A defective wheel caused the accident, one that Buick purchased from another company. Buick argued that they weren’t liable for MacPherson’s injury for two reasons: a quasi-independent dealership, not Buick itself, sold the car, and Buick didn’t even make the wheel that failed. The court ruled against both arguments. The result was a concept of legal liability extending beyond explicit contracts and direct manufacturing: the concept of due care recognizes that manufacturers are in a privileged position to understand the potential dangers of their products and have, therefore, an obligation to take precautions to ensure quality. Those obligations remain in effect regardless of who ultimately sells the product and no matter whether a subcontractor or the larger corporation itself made the defective part.

Over the last century, the notion of due care has strengthened into the legal doctrine of strict product liability. This holds that care taken by a manufacturer or supplier—no matter how great—to avoid defects is immaterial to court considerations of liability. If a product is defective and causes harm, liability claims may be filed no matter how careful the manufacturer had been in trying to avoid problems.

Proponents of these legal protections argue that social welfare is improved when companies exist under the threat of serious lawsuits if their products cause damage. Critics fear that liability suits can be unfair: companies may act in good faith to produce safe products, but nonetheless fail, and be forced to pay massive amounts even though they took all precautions they honestly believed necessary.

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government safety regulation

Legal measures and actions taken by governments to protect consumers.

legal paternalism

The doctrine that government regulators must restrict citizen marketplace freedoms in order to serve the citizens’ interest.

renegade consumer

The buyer who goes outside the system of contractual and legal safeguards to respond to defective goods and services.

Government safety regulation is the second main legal route toward a protected consumer. As is the case with liability protection, government regulation has expanded over the last century. Key mo- ments include the establishment of the National Highway Traffic Safety Administration in 1970 and the Consumer Product Safety Commission in 1972. These federal agencies are charged with advocating for consumers by imposing regulations, and then enforcing them through the agencies’ legal arms. In actual practice, the agencies frequently act in cooperation with manufacturers to ensure public safety. For example, when news broke that Toyota gas pedals were sticking, causing runaway vehicles, the NHTSA pressured Toyota to redesign the gas pedal and then recall the malfunctioning vehicles to have their pedals replaced.[10]

Regulatory action resembles the extension of liability protection in that proponents believe the measures serve the social welfare. People live better when governmental forces work to ensure protec- tion from defective products. Almost inevitably, the argument in the background is a version of utilit- arianism; it’s that the ethical good equals whatever actions serve the public welfare and happiness. If society as a whole lives better with strict regulations in effect, then imposing them is good.

Critics fear that the cost of these regulations may become burdensome. In straight economic terms, an argument could be mounted that the dollars and cents spent by corporations in their at- tempts to comply with regulations are actually superior to the social cost of letting some defective goods out into the marketplace. There’s a possibility, here, to meet advocates of regulation on their own ground by claiming that at least in monetary terms, society is better off with less regulation, not more. It’s much easier, however, to put a price tag on the cost of complying with safety rules than it is to measure in terms of dollars the cost of injuries and suffering that could have been avoided if more stringent safeguards had been in place. (Of course, if you happen to be one of those few people who gets a seriously defective item—like a car that speeds out of control—then for you it’s pretty clear that the regulations are recommendable no matter the cost.)

Another argument cautioning against regulatory action is that bureaucratic overreach threatens legal paternalism. Legal paternalism is the doctrine that, just as parents must restrict the freedom of their children in the name of their long-term welfare, so too regulators in Washington, DC (or else- where) must restrict the freedom of citizens because they aren’t fully able to act in their own self-in- terest. One simple example is the seatbelt. In the late 1960s, federal action required the installation of seatbelts in cars. Subsequently, most states have implemented laws requiring their use, at least by drivers. Society as a whole is served by these regulations insofar as injuries from traffic accidents tend to be reduced. That doesn’t change the fact, however, that people who are alone in their cars and pre- sumably responsible for their own welfare are being forced to act in a way they may find objectionable. Parallel discussions could be followed on the subject of motorcycle helmets, bicycle helmets, and similar.

Conclusion. Liability lawsuits against manufacturers, together with government regulations, pro- tect consumers from dangerous goods and services. The protections cost money, however, and regula- tions may seem intrusive or condescending to some buyers.

4.5 The Renegade Consumer The best defense can be a good offense. That’s probably the idea the owner of a chronically breaking- down Range Rover had when he parked his car on a public street in front of the dealership where he bought it and pasted bold letters on the side announcing that the car is a lemon. Probably, the display put a dent in the dealership’s business.[11]

It was work and sacrifice for the car owner, though. Whoever it was had to hatch the plan and then go out and buy stick-on lettering to spell the message on the Range Rover’s side. Then it was necessary to give up use of the car for the duration of the protest. (It also might have been necessary to constantly plug a parking meter with coins.) Regardless of the cost, the renegade consumer seeks justice against product defects by going outside the system. Instead of making ethical claims against producers based on the idea of an implicit contract, and instead of seeking refuge underneath governmental protection agencies, this kind of buyer enters a no-holds-barred battle against (perceived) dirty sellers.

Parking a car marked lemon in front of the dealership that sold it is an old—and potentially effect- ive—maneuver. Today’s social media, however, allows newer strategies with possibly higher impacts and less inconvenience. One example is Ripoff Report, a website allowing consumers to post com- plaints for all to see. Browsing the page, it takes only a moment to grasp that the site compiles more or less unedited consumer rebellions. There are stories of being gypped by department stores, robbed by banks, defrauded by plumbers, and nearly everything imaginable. People can add their own comments, and a convenient search box allows anyone to get a quick check on any company they may be consider- ing doing business with. The website’s tagline, finally, is very appropriate. It reads, “Don’t let them get away with it. Let the truth be known!”[12]

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retributive justice

Principled revenge taken against those who have wronged you.

proportional revenge

Within the marketplace ethics of retributive justice, the principle that the cost imposed on sellers of defective goods should be comparable with the consumer’s loss.

consumer advocate

Within the marketplace ethics of retributive justice, the justification of consumer revenge against sellers of defective goods as protecting other consumers.

These two sentences correspond well with the two ethical categories into which the renegade con- sumer naturally falls:

< The imperative “don’t let them get away with it” fits the conception of the renegade consumer as acting in the name of retributive justice.

< The imperative “let the truth be known!” fits the conception of the renegade consumer as a consumer advocate.

Retributive justice proposes that it’s ethically recommendable to seek revenge against those who have wronged you. “You cost me time, money, and trouble,” the logic runs, “and now I’ll return the fa- vor.” The notion is probably as old as humanity, and it appears in many of history’s oldest texts. (The Bible’s Matthew 5:38 contains the proverbial “An eye for an eye and a tooth for a tooth.”)

Two aspects of retributive justice are significant. First, there’s a strong sense of proportionality in the idea. The code isn’t “A life for an eye” because the goal of retributive justice is to make things even again; it’s to restore a balance that was there before the problematic transaction. Retributive justice is a theory of proportional revenge. In the case of the lemon Range Rover, it seems about right that a dealership that refuses to fix (or replace or refund) a client’s defective car should in turn see losses to its business that approximately equal the money they save by mistreating consumers. The second point to make about the notion of retributive justice is that it fits within and is a subset of the duty to fairness. What drives retributive justice is a notion that the two sides of an economic exchange should be treated in the same way, equally.

These two characterizations of retributive justice are important because they separate the calcu- lated act of vengeance from being nothing more than a blind and angry outburst. It’s normal when we’ve been wronged to want to simply strike out at the one who’s mistreated us. Probably, there’s a good bit of that anger behind the Range Rover owner and many of the rip-off reports. What makes those acts also ethically respectable, however, is their containment within the rules of proportionality and the duty to fairness.

The renegade consumer can also find an ethical slot in the category of consumer advocate. When the Ripoff Report asks contributors to let the truth be known, reports are enlisted not as indi- viduals seeking revenge but as wronged consumers performing a public service. Here, the rule of fair- ness is not in effect; instead, it’s the utilitarian idea of the general good. If what ought to be done is just that which brings the greatest happiness to the greatest number, then the public calling out of car deal- erships that don’t stand behind their product becomes a public utility or good. Renegade consumers become consumer advocates when they help others avoid their fate.

Conclusion. Renegade consumers are the mirror image of caveat emptor consumers. Both place extremely high levels of responsibility in the hands of the buyer. The difference is that the caveat emptor vision places that entire responsibility in the consumers’ buying judgment and so disarms them: it places an ethical restriction against consumer complaints because the entire transaction pro- cess is wrapped in the idea that before anything else the consumer should be wary about what’s being purchased. Renegade consumers also take full responsibility, but their obligations come at the end of the process, not the beginning: they rebalance the scales after a seller tries to get away with taking money for a defective product. Instead of swallowing their loss, renegade consumers act to make sure that the seller who cheated them pays a price.

4.6 The Capable Consumer The capable consumer is a free market ideal. The combined economic-ethical notion underneath it is that business functions most smoothly—and thus produces quality of life at a maximum pace—when consumers play their marketplace role efficiently. Their marketplace role is to use purchasing decisions to reward good companies, ones that produce better goods at a lower cost, while penalizing those com- panies producing inferior goods. As successful companies grow, and as poor performers fall away, the general welfare improves: products do their jobs more satisfyingly, and people gain more disposable in- come for pleasure spending (because necessities will be less expensive). If, finally, right and wrong in the economic world is about bringing the greatest good and happiness to the most people, then the marketplace economy supports this moral demand: a society should do everything possible to perfect the consumer. The perfected consumer is

< able, < informed, < free, < rational.

The able buyer is sufficiently experienced to manage marketplace choices. Just about everyone has been taken in at one point or another by unrealistic promises like those made on the 2stocktrading.com web

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page. The difference between the incapable and the capable is the ability to learn; it’s a kind of acquired instinct that sets off warning signals when an offer sounds too good: it might be too good to be true. Specifically on the stock-picking deal, able consumers don’t need to carefully study the whole spiel be- fore realizing that, probably, the best thing to do is close the web page.

The informed buyer is sufficiently knowledgeable about a specific product category to make a good purchasing choice from within the various options. Different types of items, of course, require different levels of expertise. Making a good decision about a garage door opener is much easier than making a good decision about a car because the latter is so much more complicated and filled with highly special- ized components. For example, Dodge spends a lot of time lauding their cars and trucks as including a hemi, but not many people understand what the actual benefits of that feature are. In fact, many people don’t even know what a hemi is. It’s always possible, of course, to learn about the intricacies of car en- gines, but in the real world of limited time, qualifying as an informed buyer requires only one of these two skills: either you know a lot about what you’re buying, or you learn which sources of information can be trusted. The search for a trustworthy source may lead to Consumer Reports magazine or Ripoff Report or something else, but the result should be a purchasing decision guided by real understanding.

The free buyer has choices. No amount of education about car quality will help anyone who only has one product to select. Most consumer items, however, do provide choices—abundantly. Standing in front of the shelves in any supermarket shows that the ideal of the consumer as free is, to a large ex- tent, satisfied in our society. Still, there are exceptions. Cable TV and phone services can be limited in certain areas, as can electricity providers and sanitation services.

Rational buyers use their experience and information to make good choices. For the qualities of the ideal consumer to cash out, they must be orchestrated by careful thought. Of course this hardly seems worth mentioning in the abstract. All buyers are perfectly rational when they’re reading a text- book section about buying. It’s easy to be cold and analytical sitting on a sofa. The problem comes when the actual buying is happening. Dealers use all kinds of tricks and techniques to get consumers to, at least momentarily, suspend their good judgment and leap. One of the most common is the disap- pearing deal, which can be found on the 2stocktrading.com site and almost inevitably appears in the car buying experience. The salesman always has some special opportunity that you can get now, but if you wait until tomorrow, well.…Sometimes the claim is that there’s a sale on, but it’s ending tonight. Or there’s only one left in stock and another customer has been asking about it. The salesman shakes his pen at you and pushes the contract across the desk and the car right behind him is gleaming and new and in those moments the capable consumer is the one who takes a deep breath.

4.7 Conclusion Most ethical questions surrounding consumers are about how much freedom they should have to spend their money. In the case of the wary consumer—the caveat emptor buyer—freedom is maxim- ized, but the dealer takes no responsibility for what’s sold. In the cases of the contracting, protected, and renegade consumer, buyers sacrifice some of their freedom in return for the guarantee that if a good is defective, they’ll have some recourse against the dealer. In many cases, the freedom that con- sumers lose is minimal or even positive (most people are happy to not be free to buy a lemon car).

It’s inescapably true, however, that when you force dealers to stand behind what they sell, there are goods and services that they won’t bring to market. This newspaper story, for example, relates how it came to pass that holiday season cookie makers in California had to make do one December without those little silver ball sprinkles that frequently decorate the season’s cookies. A crusading lawyer had decided the balls might be harmful, and the threat of a lawsuit caused the item to be removed from store shelves.[13] Probably, most people were able to enjoy their holiday celebrations just fine without the sprinkles, but the stakes go up when drug manufacturers are forced to consider pulling effective diabetes drugs like Avandia off the market because of a discovery that it may increase the risk of heart attacks.[14]

310 THE BUSINESS ETHICS WORKSHOP

K E Y T A K E A W A Y S

< Wary consumers are safeguarded from defective goods and services only by their own caution. They enjoy maximum freedom in the marketplace and suffer minimal protection.

< The contracting consumer is protected from defective goods and services by the affirmation that their purchase is also an implicit contract with the seller guarantying quality similar to expectations.

< The protected consumer is safeguarded from defective goods and services by liability lawsuits and governmental regulatory action.

< The renegade consumer takes individual action to penalize sellers whose products fail to meet expectations.

< The capable consumer minimizes the need for buyer protection while maximizing a market economy’s efficient functioning.

R E V I E W Q U E S T I O N S

1. What does caveat emptor mean? 2. What are some purchases that are typically made within a consumer ethics of caveat emptor?

3. What is an implicit contract? How is it created from a particular transaction?

4. What are the two main ways that consumers are backed up by legal protections?

5. How do renegade consumers create protections against defective products?

6. What characteristics make up a capable consumer?

5. CASE STUDIES

5.1 We Can Lie Too

Tappening is run by a couple of guys who don’t like bottled water. The liquid is fine, but they worry about those small transparent bottles. First, the air gets polluted when they’re fabricated and then, after they’ve been emptied and tossed in the trash, the plastic doesn’t quickly break down and reenter the ecosystem.

The Tappening people also notice that bottled-water advertising can be deceitful. The labels and ad cam- paigns are known to feature mountain streams in forest paradises, breeding the idea that the water is pumped from pristine natural sources when the truth is a lot of it comes from the tap, usually with some filtering applied.

Faced with the distasteful situation—polluting water bottles and deceitful advertising—the Tappening crew could’ve put together some of their own ads revealing the true source of common bottled waters and the destiny of the containers, but they chose to mount a more aggressive campaign. One effort is a print ad with a crying polar bear drawn at the center, sitting on a melting arctic glacier. Under the title “Bottled Water,” the text says, “98% melted ice caps, 2% polar bear tears.” At the bottom, in small print, a message reads, “If bottled water companies can lie, we can too.”[15]

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Q U E S T I O N S

1. In broad strokes, there are four types of deceitful advertising: those that make false claims, conceal facts, make ambiguous claims, and engage in puffery.

< The Tappening ad makes two apparently false claims. What are they, and what makes them seem false?

< What are the producers trying to communicate with their claims?

< Does the fact that the ad admits at the bottom that it’s a lie diminish (or entirely eliminate) the fact that false claims are made? Why or why not?

< The people at Tappening believe that bottled water ads featuring flowing natural streams can be deceitful because frequently the water comes (essentially) from a faucet. What specific kind of deceitful advertising is that? Explain.

< Is there any puffery in the Tappening print ad? If so, where?

2. Here’s one thing the Tappening polar bear ad neglects to inform people: Tappening isn’t just trying to get us to stop drinking bottled water; they’re also trying to sell something. Water bottles. They cost $14.95 (plus $3 shipping and handling). For the money you get a Tappening plastic bottle made for reuse and emblazoned with the company’s slogan: “Think Global. Drink Local.” You can also buy a message shoulder bag from the company. It announces that it’s “Made with 100% post-consumer recycled materials: yesterday’s discarded bottles and yogurt containers.” That costs $49.95, plus the shipping and handling.[16]

Make the case that Tappening is engaging in deceitful advertising by concealing facts in its polar bear ad. More broadly, what is the ethical case against Tappening?

3. No one doubts that reusable water bottles can be better for the environment than disposable ones. Does the fact that Tappening’s purpose is noble diminish the moral objection to the company’s deceitful advertising? Explain.

4. For consumers, water bottles are not high stakes. If some guy reads the Tappening ad, gets caught up in the message that bottled water is environmentally disastrous (“98% melted ice caps, 2% polar bear tears”), visits the web page and, in the passion of the moment, buys ten reusable water bottles and the shoulder bag, he’ll be out about $250. It’s doubtful that his life will be significantly worsened by that kind of monetary loss. Later on, however, he may feel conned when he realizes that the air was polluted to make his presumably environmentally friendly water bottles, and most of the time when he needs bottled water, it’s not foreseen, and so he ends up just buying the disposable bottles anyway. The reusable containers with their enviro-friendly slogans get left at home and forgotten and the only thing that really changes is the guys at Tappening made some money.

< As considered against this background, do you believe the FTC should get involved to rein in Tappening’s deceitful advertising? In ethical terms, why or why not?

< The FTC can use one of two standards for deciding whether action is required to combat deceitful advertising: the ignorant consumer standard and the reasonable consumer standard. Could both standards lead to action against Tappening or only the ignorant standard? Explain.

5. Make the case that, in ethical terms, bottled water companies should be allowed to freely label their bottles with flowing, natural streams even though the water is taken from a city supply and filtered.

5.2 Consumerism

Source: Photo courtesy of Brent Moore, http://www.flickr.com/photos/brent_nashville/166218527/.

Two curious news stories. The first comes from the BBC and tells of a shopaholic, a woman who purchased so much she could hardly fit it all in her apartment. When she passed away from pneumonia, it took more than a day to find her body underneath all the purchases. A friend commented, “It gave her pleasure to buy things, she only bought things she really liked.”[17]

The second story relates that in India, according to a UN report, there are about 560 million cell phone users, but only 360 million people have access to toilets.[18]

312 THE BUSINESS ETHICS WORKSHOP

Q U E S T I O N S

1. Consumerism replaces the model of the consumer as someone who buys necessities in order to get on with their lives, with the model of the consumer as someone who buys in order to live. Can you put that definition in your own words?

2. How could the story of a woman buried and dead underneath her endless purchases be construed as an example of consumerism?

3. How could the story of India having more cell phones than toilets be construed as an example of consumerism?

4. One way of characterizing much of the work of advertising agencies is as nurturing consumerism. Can you make the ethical case that advertising agencies should be banned from society?

5. In ethical terms, make the case that consumerism is good.

5.3 She’s Gotta Have It…or Maybe Not

Source: Photo courtesy of Angel Arcones, http://www.flickr.com/photos/freddy-click-boy/3215186647/.

Statistics aren’t available, but the amount of time guys spend spilling seduction lines—and the amount of time women spend dealing with them—is very high. Most women can deal with it coming from most guys, but what happens when the lines come from a powerful corporation?

The giant pharmaceutical company Boehringer Ingelheim has stumbled onto a drug (Flibanserin) that makes women want sex. That’s not going to earn them any money, though. To get sales, they’ve got to convince wo- men that they want to want to have sex. The problem is interesting. The drug company has discovered the cure to a disease that, by definition, no one has. If a woman—or a man—doesn’t feel like having sex, then she doesn’t feel like she’s missing something by not doing it. The opposite is the case. She doesn’t want to do it, so the fact that she doesn’t feel like doing it isn’t a problem at all. It’s perfect, actually. What the company needs to do, therefore, is create a desire. It has to make women want (or even need) something they didn’t know they wanted.

According to the New York Times, “Boehringer has been trying to lay the consumer groundwork with a promo- tional campaign about women’s low libido, including a Web site, a Twitter feed and a publicity tour by Lisa Rinna, a soap opera star and former Playboy model who describes herself as someone who has suffered from a disorder that Boehringer refers to as a form of ‘female sexual dysfunction.’”[19]

That advertising campaign is geared to create a desire for a form of women’s Viagra by convincing women that they’re supposed to want sex, and there’s something wrong with them if they don’t. The effort has its crit- ics. Here’s one argument: “Boehringer’s market campaign could create anxiety among women, making them think they have a condition that requires medical treatment. ‘This is really a classic case of disease branding,’ said Dr. Adriane Fugh-Berman, an associate professor at Georgetown University. ‘The messages are aimed at medicalizing normal conditions, and also preying on the insecurity of the patient.’”[20]

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Q U E S T I O N S

1. Dr. Fugh-Berman says that Boehringer’s marketing campaign is “aimed at medicalizing normal conditions.”

< What does “medicalizing normal conditions” mean?

< How does “medicalizing a normal condition” serve Boehringer’s purpose?

2. The goal of Boehringer’s marketing is to create a desire for a product. There are a number of ethical objections to this kind of campaign.

< What does it mean to say that trying to convince low-libido women (or men) that they need a drug to want more sex is to treat them as a means and not an end?

< How could the attempt to sell the idea that women (or men) need to need sex be construed as a violation of their basic right to freedom?

3. Boehringer created a web page dedicated to its sex drug—http://www.sexbrainbody.com—which has since been taken down. On it, a successful actress and Playboy model left a testimonial. It concluded with her encouraging readers to learn about sexual health and to feel comfortable talking about it. “Both,” she asserted, “play an important role in overall health and well-being. It’s time to focus on you!”[21]

< What are some of the ways this message—and the messenger—create the need for consumers to have sexual health the way the Boehringer pharmaceutical company defines the term?

< Justify, from an ethical perspective Boehringer’s use of these techniques.

< Boehringer has decided to take the page down. What ethical argument may have convinced them to do that?

4. A New York Times article relates that prestigious medical journals have published research affirming that low libido really is a problem, and one suffered by a large number of women. The article also notes that “such studies have been financed by drug companies.”[22]

< What is knowledge and resource exploitation by advertisers?

< Make the case that the knowledge and resources at the disposal of Boehringer and its advertising company are also an ethical obligation to not use that power to sell products.

5. Assume the critics are right. Assume that women (or men) with low libidos aren’t suffering any kind of medical problem; they’re just not that into sex, and there’s no reason why that condition should be “cured.” Make the case that even so, Boehringer is ethically justified in trying to create the need for their desire-enhancing pill.

6. A pharmaceutical company stumbles upon a drug that kills the sex drive for men and for women. The company devotes millions of dollars to a seductive advertising campaign designed to convince consumers that they really want to not want sex, and therefore they need this new medication. Make the case that this is not only ethically acceptable but laudable.

5.4 Hot Coffee

Source: Photo courtesy of Roger Karlsson, http://www.flickr.com/photos/free-photos/3375886335/.

In a world of get-rich-quick schemes, few are mentioned more frequently than lawsuits. One of the reasons is the infamous McDonald’s coffee case (Liebeck v. McDonald’s Restaurants). This is what happened in 1992 in Al- buquerque, New Mexico. Stella Liebeck, seventy-nine, was riding in a car driven by her grandson. They stopped at a McDonald’s drive-through, where she purchased a Styrofoam cup of coffee. Wanting to add cream and sugar, she squeezed the cup between her knees and pulled off the plastic lid. The entire thing spilled back into her lap. The searing liquid left her with extensive third-degree burns. Eight days of hospitaliza- tion—which included skin grafts—were required.

Initially, she sought $20,000 from McDonald’s, which was more or less the cost of her medical bills. McDonald’s refused. They went to court. There it came to light that about seven hundred claims had been made by con- sumers between 1982 and 1992 for similar incidents. This seems to indicate that McDonald’s knew—or at least should have known—that the hot coffee was a problem.

314 THE BUSINESS ETHICS WORKSHOP

Most of the rest of the case turned around temperature questions. McDonald’s admitted that they served their coffee at 185 degrees, which will burn the mouth and throat and is about 50 degrees higher than typical homemade coffee. More importantly, coffee served at temperatures up to 155 degrees won’t cause burns, but the danger rises abruptly with each degree above that limit. So why did McDonald’s serve it so hot? Most cus- tomers, the company claimed, bought on the way to work or home and would drink it on arrival. The high temperature would keep it fresh until then. Unfortunately, internal documents showed that McDonald’s knew their customers intended to drink the coffee in the car immediately after purchase. Next, McDonald’s asserted that their customers wanted their coffee hot. The restaurant conceded, however, that customers were un- aware of the serious burn danger and that no adequate warning of the threat’s severity was provided.

Finally, the jury awarded Liebeck $160,000 in compensatory damages and $2.7 million in punitive damages (about two days worth of McDonalds’ coffee sales). The judge, however, reduced the $2.7 million to $480,000. McDonald’s threatened to appeal, and the two sides eventually came to a private settlement agreement.[23]

Q U E S T I O N S

1. What does caveat emptor mean?

< According to this doctrine, who is responsible for Stella Liebeck’s burns? Explain.

< Does the fact that she’s seventy-nine years old make it more difficult to justify a caveat emptor attitude in this case?

< One aspect of the caveat emptor doctrine is that it maximizes respect for the consumer as an independent and autonomous decider. Could that be a reason for affirming that a seventy-nine- year-old is a better candidate than most for a caveat emptor ethics of consumption?

2. In general terms, what does it mean to claim that an implicit contract arises around a transaction? How does that contract protect the consumer?

3. From the information provided, and from your own experience, what are the main terms of the implicit contract surrounding the purchase of coffee at a fast-food drive-through?

< What does the restaurant owe the consumer?

< What does the consumer owe the restaurant?

4. In order for an implicit contract to arise, the following three conditions must be met:

< Both sides must enter the contract freely.

< Both sides must be reasonably informed of the agreement’s terms.

< Both sides must be honest.

Were these three conditions met in the McDonald’s coffee case? Explain.

5. Make the case that the original offer by Liebeck—$20,000 from McDonald’s to cover the medical bills—is ethically recommendable within the structure of an implicit contract. Use the concept of an implied warranty.

6. The concept of manufacturer liability gives consumers the right to sue manufacturers for defective goods. There are three kinds of product defect:

< Design defects (errors in the product’s design)

< Manufacturing defects (errors in the production of one specific case of a generally safe product)

< Instructional defects (poor or incomplete instructions for a product’s safe use)

Which (if any) of these defects are applicable in the McDonald’s coffee case? Explain.

7. What is the concept of strict product liability, and how could it be applicable in this case? 8. In ethical terms, justify the original jury award to Liebeck: $160,000 in compensatory damages, and $2.7

million in punitive damages (about two days of McDonalds’ coffee sales).

9. Of these three ethical structures for conceiving of the coffee-buying consumer and her protections—caveat emptor, the implicit contract, and manufacturer liability—which do you believe is best? Why?

CHAPTER 12 THE SELLING OFFICE: ADVERTISING AND CONSUMER PROTECTION 315

5.5 Cancel the Account

Source: Photo courtesy of abaporu, http://www.flickr.com/photos/abaporu/499864635.

This is a condensed version of a dialogue between Vincent Ferrari and AOL, an Internet services provider known especially for its e-mail.

316 THE BUSINESS ETHICS WORKSHOP

AOL Rep:

Hi, this is John at AOL. How may I help you today?

Vincent: I wanted to cancel my account.

AOL Rep:

OK. You’ve had this account for a long time.

Vincent: Yep!

AOL Rep:

You’ve used this quite a bit. What was the cause for turning this off today?

Vincent: I just don’t use it anymore.

AOL Rep:

Do you have a high-speed connection like DSL or cable?

Vincent: Yep.

AOL Rep:

OK.

AOL Rep:

How long have you had that, the high speed?

Vincent: Years.

AOL Rep:

Well, actually, I’m showing a lot of usage on this account.

Vincent: Yeah a long time ago, not recently.

AOL Rep:

I’m looking at this account…

Vincent: Either way, whatever you’re seeing…

AOL Rep:

Well, what’s the cause for turning this off today?

Vincent: I don’t use it.

AOL Rep:

Well, OK. Is there a problem with the software itself?

Vincent: No. It’s just I don’t use it. I don’t need it. I don’t want it. I don’t need it anymore.

AOL Rep:

So when you use it, the computer, is it for business or for school?

Vincent: Dude, what difference does it make? I don’t want the AOL account anymore. Can you please cancel it?

AOL Rep:

Well, on June second this account was signed on. It’s been on for seventy-two hours.

Vincent: I don’t know how to make it any clearer.

AOL Rep:

Last year was five hundred fou—last month was 545 hours of usage.

Vincent: I don’t know how to say this any clearer, so I am just going to say this one last time. Cancel the account please.

AOL Rep:

Well explain to me what’s—wha—why?

Vincent: I am not explaining anything to you. Cancel the account.

AOL Rep:

Wha—what’s the matter man? We’re just—I’m just trying to help.

Vincent: You’re not helping me. You’re not helping me.

AOL Rep:

I am trying to, OK.

Vincent: Listen, I called to cancel the account. Helping me would be canceling the account. Please help me and cancel my account.

AOL Rep:

No it wouldn’t actually.

Vincent: Cancel my account!

CHAPTER 12 THE SELLING OFFICE: ADVERTISING AND CONSUMER PROTECTION 317

AOL Rep:

Turning off your account would be the worst—

Vincent: Cancel the account! Cancel the account!

AOL Rep:

Is your dad there?

Vincent: I’m the primary payer. I’m the primary person on the account, not my dad. Cancel the account!

AOL Rep:

OK, ’cause I’m just trying to figure out—

Vincent: Cancel the account! I don’t know how to make this any clearer for you. Cancel the account. The card is mine, in my name. The account is mine and in my name. When I say, “cancel the account,” I don’t mean help me figure out how to keep it. Cancel the account.

This went on for almost five minutes. Part of the audio can be heard here:

Cancel AOL

Back in the days before Internet, exchanges like this would’ve been entirely positive for AOL. The worst that could’ve happened is that the company would lose the client, who they were going to lose anyway. By drag- ging the cancellation out, they may have convinced him to stay on, so that’s what they did.

Today, with Internet, things are different. Ferrari (who, apparently, suspected that AOL would try some shenanigans) taped the conversation and posted it. The Slashdot effect—a website overwhelmed by a huge spike in traffic—followed immediately. It wasn’t long before Ferrari and his conversation were appearing on shows like Today. The damage to the AOL brand was catastrophic. Revenue plummeted, and with no hope for recovery, the company that owned and controlled AOL at the time, Time Warner, sold off the shriveled remains.

Certainly, the Ferrari tape didn’t alone bring down AOL, not even close, but it’s difficult for any company to be profitable when recordings like Ferrari’s are going out over national TV and available for anyone to hear, twenty-four hours a day, seven days a week, forever, online.

View the video online at: http://www.youtube.com/v/xmpDSBAh6RY

318 THE BUSINESS ETHICS WORKSHOP

Q U E S T I O N S

1. After listening to the Ferrari tape, what would consumers associate with the AOL brand? How is that brand different from a pure economic understanding of the value of AOL as a company?

2. In broad strokes, what is retributive justice? How did it work in this case? How is this case study in this textbook involved?

3. As an ethical theory, most conceptions of retributive justice highlight a notion of proportionality.

< What does proportionality mean?

< Just in general terms, and from the provided information, did Ferrari’s response to AOL satisfy the proportionality requirement? Why or why not?

4. Ferrari couldn’t have foreseen the how fast and how much his AOL-bashing would grow. Part of the reason is that much of the negative publicity wasn’t provided directly by him. NBC rebroadcast his tape through millions of TV sets. Countless blogs and websites excerpted sections and linked to the original. (Eventually, the transcript even turned up in a business ethics textbook.) Should Ferrari take responsibility for how far things went? Justify.

5. Two ethical values support consumer revenge in the marketplace: fairness and public welfare. Fairness is the idea that the company hurt the consumer, so the consumer ought to hurt the company. Public welfare is the idea that by publicly attacking companies, consumers actually do other consumers a favor by warning them away from poor service providers. Sketch an ethical justification for Ferrari’s action based on the idea that he’s serving the public welfare.

6. In ethical terms, what are some advantages of consumer revenge when compared with these other forms of consumer protection: the concept of the implied contract, the legal right to sue?

CHAPTER 12 THE SELLING OFFICE: ADVERTISING AND CONSUMER PROTECTION 319

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3.

4.

5.

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8.

9.

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12. 13.

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ENDNOTES

Section 5, Federal Trade Commission Act.

“Bogus ‘Rebate’ Offers Violate Federal Law,” Federal Trade Commission, August 5, 2002, accessed June 2, 2011, http://www.ftc.gov/opa/2002/08/cyberspace.shtm.

Noreen O’Leary and Todd Wasserman, “Old Spice Campaign Smells Like a Sales Suc- cess, Too,” July 25, 2010, Adweek, accessed June 2, 2011, http://www.adweek.com/ news/advertising-branding/old-spice-campaign-smells-sales-success-too-107588.

Meena Hartenstein, “Old Spice Guy Takes Web By Storm in Viral Ad Campaign, Creat- ing Personalized Videos for Fans, Celebs,” New York Daily News, July 14, 2010, ac- cessed June 2, 2011, http://www.nydailynews.com/entertainment/tv/2010/07/14/ 2010-07-14_old_spice_guy_takes_web_by_storm_in_viral_ad_campaign_creating_ personalized_vide.html.

Nicholas Graham, “Jersey Shore Fight: Ronnie Gets Into Vicious Fight,” Huffington Post, August 1, 2010, accessed June 2, 2011, http://www.huffingtonpost.com/2010/ 01/08/jersey-shore-fight-ronnie_n_416259.html.

Rebecca Clay, “Advertising to Children: Is it Ethical? Monitor On Psychology 31, no. 8 (September 2000), 52, accessed June 2, 2011, http://www.apa.org/monitor/sep00/ advertising.aspx.

Rebecca Clay, “Advertising to Children: Is it Ethical? Monitor On Psychology 31, no. 8 (September 2000), 52, accessed June 2, 2011, http://www.apa.org/monitor/sep00/ advertising.aspx.

Rebecca Clay, “Advertising to Children: Is it Ethical? Monitor On Psychology 31, no. 8 (September 2000), 52, accessed June 2, 2011, http://www.apa.org/monitor/sep00/ advertising.aspx.

“Toyota to Replace 4 Million Gas Pedals After Crashes,” Fox News, November 25, 2009 accessed June 2, 2011, http://www.foxnews.com/us/2009/11/25/ toyota-replace-million-gas-pedals-crashes.

“Toyota Announces Fix for Gas Pedal Sticking Problem,” US Recall News, November 26, 2009, accessed June 2, 2011, http://www.usrecallnews.com/2009/11/ toyota-announces-fix-for-gas-pedal-sticking-problem.html.

“Range Rover Owner Advertises Faults On Lemon Parked Outside Dealer,” Jalopnik, June 3, 2009, accessed June 2, 2011, http://jalopnik.com/5277286/ range-rover-owner-advertises-faults-on-lemon-parked-outside-dealer.

Ripoff Report home page, http://www.ripoffreport.com.

Carol Ness, “Bay Area Faces Holidays Without Little Silver Balls on Baked Goods,” San Francisco Chronicle, December 23, 2003, accessed June 2, 2011, http://articles.sfgate.com/2003-12-23/news/17524040_1_dragees-holiday- cookies-silver-balls.

Andrew Clark, “Relief for GlaxoSmithKline as US Regulators Reject Ban on Avandia,” Guardian, July 15, 2010, accessed June 2, 2011, http://www.guardian.co.uk/business/ 2010/jul/15/glaxosmithkline-avandia-fda-expert-committee.

“New Tappening Ads Tell Lies—Honest,” Adweek, July 23, 2009, accessed June 2, 2011, http://www.adweek.com/aw/content_display/creative/news/ e3i04ac5aa7296d367cc7c7c9623bc3df48.

Tappening, order page, accessed June 2, 2011, http://www.tappening.com/ Order_Tappening_Bottle.

“Shopaholic Died under Purchases,” BBC, July 28, 2009, accessed June 2, 2011, http://news.bbc.co.uk/2/hi/uk_news/england/manchester/8173271.stm.

“India Has More Mobile Phones Than Toilets: UN report,” Telegraph, April 15, 2010, ac- cessed June 2, 2011, http://www.telegraph.co.uk/news/worldnews/asia/india/ 7593567/India-has-more-mobile-phones-than-toilets-UN-report.html.

Duff Wilson, “Push to Market Pill Stirs Debate on Sexual Desire,” New York Times, June 16, 2010, accessed June 2, 2011, http://www.nytimes.com/2010/06/17/business/ 17sexpill.html?src=me&ref=business.

Duff Wilson, “Push to Market Pill Stirs Debate on Sexual Desire,” New York Times, June 16, 2010, accessed June 2, 2011, http://www.nytimes.com/2010/06/17/business/ 17sexpill.html?src=me&ref=business

Melissa Castellanos, “Lisa Rinna on ‘Sex, Brain, Body’ Connection,” CBS News, May 18, 2010, accessed June 2, 2011, http://www.cbsnews.com/stories/2010/05/18/ entertainment/main6496015.shtml?tag=mncol;lst;2.

Duff Wilson, “Push to Market Pill Stirs Debate on Sexual Desire,” New York Times, June 16, 2010, accessed June 2, 2011, http://www.nytimes.com/2010/06/17/business/ 17sexpill.html?src=me&ref=business.

Consumer Attorneys of California, “The Actual Facts About the McDonalds’ Coffee Case,” The ‘Lectric Law Library, 1995, accessed June 2, 2011, http://www.lectlaw.com/files/cur78.htm.

320 THE BUSINESS ETHICS WORKSHOP

MGT229 – Lesson 9 ‒ Case Study

Hooters Restaurants

Background Information  Hooters restaurants are known for spicy chicken wings, the Owl mascot (i.e., “Hooters”) and Hooters’  girls, dressed in, as the company describes it, “white Hooters tank top, orange shorts, suntan hose,  white socks, solid white shoes, brown Hooters pouch, name‐tag and of course … a smile!” Hooters only  hires female servers and readily admits that “the element of female sex appeal” is part of its business,  but no more so, it argues, than the “socially acceptable” Dallas Cowboy Cheerleaders, Sports Illustrated  swimsuit models, or Radio City Rockettes. Hooters states,

The ‘nearly world famous’ Hooters Girls are the cornerstone of the Hooters concept, and as part  of their job, these all‐American cheerleaders make promotional and charitable appearances in  their respective communities. Hooters hires women who best fit the image of a Hooters Girl to  work in this capacity.

Hooters provides detailed guidelines on its Web site about hair, eyes, skin, makeup, and exercise.  Consistent with maintaining the image of a Hooters Girl, all of its female wait staff must attend image  classes and pass an image quiz.    Current Issue  Hooters is being sued for discrimination by two waitresses from Roseville, Michigan, Cassandra Smith  and Leeanne Convery. Smith received positive performance evaluations and was promoted to shift  supervisor. But at her last evaluation, the 5’8″ Smith says she was advised to lose weight and join a gym,  despite dropping from 145 pounds, when hired, to her current 132.5 pounds. She says she was given 30  days to lose more weight, and when she didn’t, was fired. Says Smith, “I had these two women from  [Hooters headquarters in] Atlanta telling me I had 30 days to make an improvement, and I didn’t know  what I’m supposed to improve. I was proud of myself, working out the last months, losing 10 pounds to  get ready for my summer body. For that (phone call) to happen, it was almost a slap in the face.”  Convery, who is 4’11” and weighs 115 pounds, says she was also placed on weight probation and then  fired, despite losing 15 lbs.    Hooters Response  In a written statement, Hooters said, “No employee in Michigan has been asked to lose weight and …  the company does not enforce any weight requirement.” Company spokesperson Mike McNeil said,  “We never mentioned weight. We never mentioned pounds. We never mentioned scales.” But, he said,  “We have an image to uphold. We’ve been upholding it for 27 years. Hopefully, we’ll be doing it for  another 27 years.” Moreover, he said, “You’re hired based on the image you have when you walk  through the door.”    Additional Information  Discrimination is treating people differently in hiring, firing, promotion, training, and compensation  decisions because of nonperformance related criteria.  For example, age discrimination is treating  people differently because of their age.  Age discrimination typically occurs when older workers are fired  because of their age, or not hired, promoted, trained, or paid because of their age, rather than their  potential or performance.  The chapter discusses age, sex, race and ethnicity, and disability‐based

discrimination in detail.  Despite good efforts and intentions, these kinds of discrimination still occur in  workplaces, but to a lesser degree than in the past.

Federal law, based on Title VII of the 1964 Civil Rights Act, says that it is not unlawful to hire and employ  someone on the basis of sex, religion, or national origin.  Notice, however, that Title VII doesn’t say  anything about weight.  For instance, a professional woman wrote to the legal advice column of the Wall  Street Journal with this complaint, “I am a professional woman whose job at an Atlanta‐area company  was terminated after only one day. The recruiter told me the owner said he didn’t like me because I was  overweight and had large breasts. A smaller woman with less experience was hired to replace me. Can I  fight this?”  Attorney Thomas Mitchell, who was consulted by the columnist, said, “What happened is  wrong and unfair, but it’s really hard to persuade a court that it’s illegal under that context because the  employer didn’t replace you with a male.” Mitchell is indicating two things here. First, firing this woman  because of her weight was wrong, but it wasn’t illegal because weight is not covered under federal law  or state law (in this case, Georgia).  Second, there would have been a legal complaint if she had been  replaced by a man, but the basis of the case would have been sex discrimination and not weight  discrimination.

Since the Hooters case was filed in Michigan, does Michigan law cover weight when it comes to  employment decisions?  Indeed, Michigan is the only state that does.  In 1976, Michigan passed the  Elliott‐Larsen Civil Rights Act which protects rights passed on religion, race, color, national origin, age,  sex, height, weight, familial status, or marital status.  More specifically, Michigan employers are  prohibited from any of the following: To fail or refuse to hire or recruit, discharge, or otherwise  discriminate against an individual with respect to employment, compensation, or a term, condition, or  privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or  marital status.

So, under Michigan law Smith and Convery may have a case for weight discrimination.  That is, under  Michigan law, weight is a non‐job‐related criterion.  Smith and Convery’s attorney put it this way, “All  their job duties are those of a waitress.  Serve chicken wings, refill salt shakers, carry mugs of beer.”  In  other words, weight isn’t related to how well Smith and Convery do their jobs at Hooters.  So from the  plaintiffs’ perspective, under Michigan law, weight clearly should not be a factor in human resource  decisions.

In Chapter 11 on human resource management, the general effect of Federal employment law, which is  still evolving through court decisions, is that employers may not discriminate in employment decisions  on the basis of sex, age, religion, color, national origin, race, or disability. The intent is to make these  factors irrelevant in employment decisions. Stated another way, employment decisions should be based  on factors that are “job related,” “reasonably necessary,” or a “business necessity” for successful job  performance.

The only time that sex, age, religion, and the like can be used to make employment decisions is when  they are considered a bona fide occupational qualification(BFOQ).  Title VII of the 1964 Civil Rights Act  says that it is not unlawful to hire and employ someone on the basis of sex, religion, or national origin  when there is a bona fide occupational qualification (BFOQ) that is “reasonably necessary to the normal  operation of that particular business.”

For example, a Baptist church hiring a new minister can reasonably specify that being a Baptist rather  than a Catholic or Presbyterian is a BFOQ for the position. However, it’s unlikely that the church could

specify race or national origin as a BFOQ. In general, the courts and the EEOC take a hard look when a  business claims that sex, age, religion, color, national origin, race, or disability is a BFOQ.

What to Do?  As the judge in the case, you’ve got a number of key determinations to make. First, the women are  basically arguing that being fired for being too heavy is akin to being fired because of their age, religion,  sex, color, or national origin. In short, they say they’re being discriminated against because of their  weight. So, if Hooters fired them because they were too heavy, is that illegal under state and federal  law? Second, Hooters will claim that the image of the Hooter Girl is central to their business and  consequently allows them to discipline and fire waitresses for not maintaining that image. This can be  considered a bona fide occupational qualification. When a BFOQ is “reasonably necessary to the normal  operation of that particular business,” personnel decisions can be made on the basis of race, color,  religion, sex, or national origin. Is the Hooter Girl image, and more specifically, the weight of a Hooter  Girl, a BFOQ and thus a legally justifiable reason for Hooters’ hiring, firing, and promotion decisions?     Finally, Convery claims that since giving birth to her son, she has had problems maintaining her weight.  In other words, having children changes a woman’s physique, making it more difficult to return to one’s  pre‐baby weight. If this is true, could she possibly have a legal case on the basis of the Americans with  Disabilities Act?  Source: Adapted from MGMT 6 Instructor Resources, Chapter 12, Cengage Learning, 2013.